8  ^= 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE 

Trial  of  Title  to  Land 
in  Oklahoma 

BEING  A  TREATISE  ON  THE  LAW 
OF  REAL  ESTATE 

WITH 

PRACTICE,  FORMS 
AND    PROCEDURE 


BY 

WELLINGTON    L.  MERWINE 

(Of  the  Okmulgee,  Oklahoma,  Bar) 


VOLUME  ONE 


CINCINNATI,  OHIO 

THE  W.  H.  ANDERSON  COMPANY 

LAW  BOOK  PUBLISHERS 
1913 


T 
M55f5  t 

15 /3 


V- 


COPYBIQHTED   1912 

THE  W.  H.  ANDERSON  COMPANY, 
Cincinnati,  O. 


To 

JOHN  LAFAYETTE  NEWHOUSE, 

First  Judge  of  the  County  Court  of  Okmulgee  County,  Oklahoma, 

not  only  as  a  tribute  to  him  as  a  lawyer  and  a  judge, 

but  also  as  an  acknowledgment  of  the 

friendship  and  esteem  of 

the  author, 

This  Work  is  Dedicated. 


PREFACE 


The  bench  and  bar  of  this  State,  in  determining  the  law  and 
procedure  applicable  to  land  litigation  here,  have,  for  a  long 
time,  been  compelled  to  search  for  it  in  the  Statutes  of  Okla- 
homa, the  Statutes  of  Arkansas,  the  crude  Indian  laws  of  the 
various  nations  of  the  Five  Civilized  Tribes,  the  Supreme 
Court  Reports  of  the  State,  the  Federal  Court  Reports,  and 
the  reports  of  the  Supreme  Court  of  the  United  States.  In  the 
preparation  and  trial  of  every  suit  in  court,  and  in  the  exam- 
ination of  every  title  to  real  estate,  there  has  been  involved  here- 
tofore in  this  State,  a  tremendous  amount  of  labor.  To  save  the 
profession  this  task  has  been  the  purpose  of  the  author  in  pre- 
senting this  book  to  the  bar  and  the  bench  of  this  State. 

This  book  is  the  result  of  the  author's  many  years  of  experi- 
ence in  the  practice  pertaining  to  land  litigation  and  the 
examination  of  real  estate  titles  in  this  State,  and  in  the  State 
of  Ohio,  a  State  whose  practice  in  all  of  the  real  actions  is 
practically  identical  with  that  of  the  State  of  Kansas  and  of 
Oklahoma. 

While  it  has  been  the  aim  of  the  writer  to  give  the  sub- 
stantive laAv  of  real  estate  in  Oklahoma,  yet  it  has  been  more 
his  purpose  to  make  it  a  practice  book  for  which  the  busy 
practitioner  will  find  constant,  daily  use.  The  general  law 
books  on  the  subjects  of  pleading  and  journal  entries  usually 
are  a  help  to  the  busy  lawyer.  But  nowhere  in  any  of  the 
practice  books,  known  to  the  writer,  has  he  found  forms  for 
the  procedure  set  forth  in  a  connected  chain  of  the  successive 
steps  required  in  any  of  the  actions  by  which  real  estate  is 
sold  from  the  first  pleading  filed  in  the  case  to  and  including 
the  execution  and  delivery  of  the  deed  by  the  officer  of  the 
court  to  the  purchaser. 


Vi  PREFACE. 

The  author  here  extends  grateful  acknowledgment  to  the 
bar  of  Okmulgee  for  valuable  suggestions  in  the  course  of  liti- 
gation concerning  Indian  lands  in  the  Creek  country.  No 
abler  or  better  bar  ever  graced  or  honored  the  profession. 

In  the  preparation  of  this  work  it  has  been  a  source  of 
pleasure  to  note  that  the  Supreme  Court  of  Oklahoma  has,  by 
its  honesty  and  high  legal  ability  and  foresight,  always  dis- 
closed in  every  case  before  it,  a  steadfast  purpose  to  give  to 
the  people  of  our  beloved  State  land  titles  that  will  protect  the 
homes  of  our  people. 

WELLINGTON  LEE  MERWINE. 

Okmulgee,  Okla.,  October  1,  1912. 


TABLE  OF  CONTENTS. 


CHAPTER    I. 


Procedube  by  Which   the  Colet  Acquires  Powee  to  Tbansfee  Real 
Estate  feom  One  Peeson  to  Anotheb — Jueisdiction. 

SECTION  ^^^^ 

1.  Preliminary   statement    *■ 

2.  Duty  of  counsel  in  courts  in  proceedings  for  sale  or  transfer 

of  real   estate  by  judicial   process 2 

3.  Jurisdiction   of   courts — Judicial    sale — Proceedings,    sale   void 

without * 

4.  Jurisdiction — Provisions  of  the  Constitution  as  to 6 

5.  Jurisdiction — Creation  of  superior  court 7 

6.  Jurisdiction  of  superior  court — Proceedings  in — Custer  county 

superior    court ' 

7.  Jurisdiction — County    courts — Procedure   in 7 

8.  Jurisdiction — District   court    8 

9.  Probate  jurisdiction  of  the  county  court 3 

10.  Proceedings    of    county    court,    how    construed — Effect    of    its 

process   and   judgment ^ 

11.  The  issuance  and  service  of  process  in  the  county  court 10 

12.  Under  substitution  of  jurisdiction,  rights  remain  the  same..  10 

13.  May  exercise  what  powers  out  of  court 10 

14.  Where  wills  may  be  proved  and  testamentary  letters  must  be 

granted     1" 

15.  Other  instances  of  jurisdiction  of  county  other  than  that  of 

the  residents  of  decedent H 

16.  County  in  which  application  is  first  made — Jurisdiction 11 


CHAPTER    II. 

The   Procedube   by  Which   the   Court   Acquibes   Powee   to  Transfeb 
Reax  Estate  feom  One  Peeson  to  Anotheb — Venue  of  the  Action. 

17.  Actions   local    and   transitory 12 

18.  Venue — ^Ejectment — Quiet    title — Partition — For    sale    of    real 

property     13 

19.  Venue  9  what  must  appear  in  the  pleading  as  to 18 

vii 


Viii  CONTENTS. 

SECTION  PAGE 

20.  Venue — Real  property  in  one  or  more  tracts  in  two  or  more 

counties — Action  may  be  brought   in  either — Specific  per- 
formance            18 

21.  Venue — Actions  against  officers  must  be  brought  where  cause 

of   action  arose,  except 19 

22.  Venue — The  action  against  a  domestic  corporation  other  than 

an    insurance    company 19 

23.  Venue — Actions   against   transportation    or   transmission  com- 

panies— ^Turnpike   road    companies 20 

24.  Venue — Where  domestic  charter  provides  place  for  suit 21 

25.  Venue — The  action  against  a  nonresident  or  foreign  corpora- 

tion             21 

26.  Venue — Where  every  other  action  must  be  brought 24 

27.  Venue — The   action   for   divorce 25 


CHAPTER    III. 

The  Proceduee  by  Which  a  Coubt  Acqihees  Power  to  Transfer  Reax 

Estate  from  One  Person  to  Another — The  Commencement  of  the 
Action. 

28.  Preliminary   statement    27 

29.  The   action — How   commenced 28 

30.  Copy  of  the  petition  need  not  accompany  the  summons — How 

copy    obtained    29 

31.  The  praecipe — The   summons  and  its  requisite 29 

32.  Summons  not  fatally  defective,  when — Summons  in  foreclosure 

— Judgment  for  more  than  amount  indorsed  on  summons.  30 

33.  Summons  may  issue  to  another  county,  when 31 

34.  Summons — Service    and    return 34 

35.  The  summons — The  return  of  the  sheriff  may  be  corrected  by 

amendment    34 

36.  How  objection  made  to  irregular  service — May  plead  to  merits 

without  entering  appearance,  how 35 

37.  Evidence  may  be  given  in  aid  of  sheriff's  return,  when 35 

38.  Alias  summons  may  issue,  when 36 

39.  By  whom  summons  may  be  served 36 

40.  Summons — Service   by   responsible   citizen — Verification    of   re- 

turn      37 

41.  Summons — Service  personal — Place  of  residence 37 

42.  Return   must  state  what 39 

43.  Does  the  return  of  the  sheriff  import  a4)solute  verity? 39 

44.  The  officer's  return  may  be  corrected  by  amendment 42 

45.  When  acknowledgment  of  service  equivalent  to  service  of  sum- 

mons       43 

46.  Summons — Service  on  corporations 44 

47.  Constitutional  provision  as  to  service  of  summons  upon  foreign 

corporation    45 


CONTENTS.  IX 

SECTION  PAGE 

48.  Foreign  corporation  required  to  file  copy  of  charter  must  ap- 

point resident  agent  upon  whom  summons  may  be  served.  .  45 

49.  When  no  resident  agent  designated,  service  of  summons  upon 

foreign  corporation  may  be  upon  secretary  of  state 46 

50.  Summons  on  railroad  and  state  company — Designated  agent.  .  .  47 

51.  Summons — ^Certificate  of  appointment  of  designated  agent....  47 

52.  Failure  to  designate  agent,  local  agent  may  be  served,  vi^hen .  .  4S 

53.  Service  by  leaving  copy  at  residence  of  agent 48 

54.  Service  on  insurance  company 49 

55.  Service  on  managing  agent 49 

56.  Constructive  service  on  nonresident  by  publication 49 

57.  The  affidavit  required  for  service  by  publication 53 

58.  Application  to  set  aside   constructive  service  and  proceedings 

under  it  not  a  collateral  attack,  when 56 

59.  The   affidavit  for  service  by  publication   may  be  corrected  by 

amendment,   when 58 

60.  Service  by  publication,  when  and  how  made 60 

61.  Service  by  publication  complete,  when — Proof  of  publication.  .  .  62 

62.  The  affidavit  in  proof  of  publication  of  notice  may  be  amended  62 

63.  When  personal   service  of  summons  may  be  made  out  of  the 

state     62 

64.  Judgment  on  service  by  publication  may  be  opened  up,  how — 

Procedure   as  to — Good  faith   purchasers 64- 

65.  Service  by  publication  on  unknown  heirs 65 

66.  Procedure  wliere  part  only  of  the  defendants  are  served 65 

67.  Procedure  against  several  defendants  on  promissory  note ....  66 

68.  Procedure  where  one  of  a  partnership  has  been  served 66 

69.  Judgment  in  the  action  no  bar  against  defendant  not  served . .  67 

70.  Lis  pendens — No  notice,  if  service  be  not  had 67 

71.  Judgment  ^  lien  on  land  in  other  county,  when 67 

CHAPTER    IV. 

Actions  by  or  Against  Infants  Affecting   Real  Estate. 

72.  Actions  by  or  against  infants — History  of  the  law  as  to  the 

duties  of  next  friend  and  guardian  ad  litem 69 

73.  Actions  by  or  against  infants — ^^Court  has  power  to  order  pay- 

ment of  fee  for  guardian  ad  litem 71 

74.  Actions  by  or   against   infants — The   guardian   ad    litem    may 

employ  an  attorney,  when 72 

75.  Actions  by  or  against  infants — Guardian  ad  litem  allowed  at- 

torney's fee  for  counsel  employed  by  him  in  allowance  of 

his  own  account,  when 73 

76.  Actions  by  or   against  infants — Nature  of  the   duties   of   the 

guardian   ad    litem 73 

77.  Actions  by  or  against  infants — The  next  friend  no  party  to  the 

action — May  employ  counsel 76 


X  CONTENTS. 

SECTION  PA^OV 

78.  Actions  by  or  against  infants — The  next  friend  and  guardian 

ad  litem  perform  the  same  functions 76 

79.  Actions  by  or  against  infants — Statutory  provisions 78 

80.  Actions  by  or  against  infants — The  service  of  summons  upon 

an  infant  under  fourteen  years  of  age — Over  fourteen  years 

of    age ' " 

81.  Actions  by  or  against  infants — Where  infant  not  served  judg- 

ment   void 79 

82.  Action   by    infant   after    disability    of    infancy   removed — Pro- 

cedure in  action  on  becoming  of  age 81 

82a.  Restoration  of  purchase  money  in  suits  to  disaffirm  deed 81 

82b.  Conveyance  by  minor  Creek  freedman  void 82 

CHAPTER   V. 

The  Law  and  Procedure  by  Which  Real  Estate  is  Sold  Undeb  Execu- 
tion AND  Orders  of  Sale — The  Judgment. 

83.  Preliminary    statement 84 

84.  What  is  a  judgment  and  what  is  an  order 84 

85.  The  judgment  must  be  confined  to  the  issues 86 

86.  Tlie  judgment  must  conform  to  the  verdict 88 

87.  Judgments  without  jurisdiction  of  the  parties  or  the  subject- 

matter    are    void 89 

88.  Judgments  import  absolute  verity  and  cannot  be  collaterally 

attiicked     91 

89.  Judgment  of  the  court  as  between  the  parties,  final 92 

90.  The  effect  of  the  finding  of  the  court  of  facts  giving  it  power 

to   enter   judgment 94 

91.  KflVct  of  void   and  voidable  judgments 95 

92.  Void    judgments 97 

93.  Judgments   may   determine   ultimate    right  of   parties — Judg- 

ment may  be  rendered  against  one  or  more  parties 9'8 

94.  Dismissal  of  an  action  without  prejudice 98 

95.  Plaintiff  may   dismiss  certain  actions 99 

96.  Dismissal  may  not  affect  set-ofT  or  counterclaim,  when 100 

97.  Tlie  judgment  in  an  action  to  enforce  a  mortgage  or  other  lien 

— The  order  of  sale 100 

98.  Judgment  ordering  conveyance — By  whom  and  how  secured. .  . .  101 

99.  Judgment — Failure  to  answer — Court  may  take  an  account.  .  101 

100.  Judgment  by  confession 102 

101.  Judgment  confessed  by  warrant  of  attorney 102 

102.  Cause  of  action  must  be  stated  briefly  in  judgment 103 

103.  AfTidavit   must  be  filed  before  judgment.! 103 

104.  JudcTTient  by  confession  enforced  as  other  judgments 103 

105.  Warrant  confessing  judgment  to  be  filed : 103 

106.  Confession   of  judgment  by  prisoner 103 

107.  Judgment  must  conform  to  the  verdict 104 


CONTENTS.  XI 

SECTION  ^'*^°^ 

108.  Judgment   on   special   verdict 104- 

109.  Judgment   notwithstanding   the   verdict 104 

110.  Judgment    where    counterclaim    or    set-off    exceeds    plaintiff's 

claim     104 

111.  Judgment  on  the  pleadings lO* 

112.  Judgments  concerning  infants  set  aside,  when 105 

113.  Judgments   in   district   court   on   cases   appealed  from   county 

court     106 

114.  Judgment  and  orders  to  be  entered  on  journal •  106 

115.  The  clerk  to  make  complete  record  in  case,  when 108 

116.  Judge  may  sign  record  at  next  term 108 

117.  What  papers  constitute  complete  record 108 

118.  Upon  failure  of  clerk  to  make  complete  record,  court  may  do  so  109 

119.  Judgment   becomes   dormant,   when 109 

120.  Dormant   judgments — How    revived 109 

121.  Judgment  lien — General  discussion 1 10 

122.  Judgment  of  county  court  lien  on  real  estate Ill 

123.  Lien  on  real  estate — Lien  dates  from,  when — Lien  on  judgment 

from  another  county,  how  secured Ill 

124.  Judgment  recorded  in  office  of  register  of  deeds — Effect  of .  .  .  .  112 

125.  Res   ad  judicata 113 

126.  Lis  -pendens H^ 

127.  Lis  pendens  as  to  lands  in  another  county 113 

128.  The  procedure  by  which  judgment  is  obtained  on  warrant  of 

attorney  to  confess  judgment — Form  for  the  petition....  114 

129.  The  answer  confessing  judgment 115 

130.  The  judgment  by  confession 116 


CHAPTER    \l. 

The  Law  and  Procedube  by  Which  Real  Estate  is  Sold  Unmb  Levy 

OF  AN   Execution. 

131.  General    statement 119 

132.  The  praecipe  for  an  execution 120 

133.  The  execution — ^Nature  and  kinds  thereof 120 

134.  The  property  subject  to  levy  and  execution 123 

135.  The  property  bound  from  the  time  of  the  levy 123 

136.  The  judgment  becomes  dormant,  when 123 

137.  The  command  of  the  execution 1'25 

138.  The  priority  in  case  of  several  levies — The  office  must  endorse 

on  the  writ  the  date  he  received  it 126 

139.  If  no  goods  to  le^-y  on  real  estate 127 

140.  The  officer  may  require  bond  before  levying  on  goods  claimed 

by    third    party 128 

141.  When  the  officer  may  take  a  bond  and  leave  the  goods  in  the 

possession  of  the  defendant 128 

142.  The  notice  of  sale — Inventory — Goods  taken  on  execution 129 


Xll  CONTENTS. 

SECTION  PAGE 

143.  Property  insufficient — Further  Ie\y — Indorsement  by  officer...      130 

144.  The   appraisement   under   the   levy — Qualifications  of   the   ap- 

praisers— View  of   the   premises 130 

145.  The  appraisement  must  be  made  on  actual  view 131 

146.  The  return  of  the  appraisers  conclusive  and  cannot  be  set  aside 

except  for  fraud  or  other  proper  grounds 131 

147.  Parol  evidence  may  be  introduced  to  show  mistake  in  appraise- 

ment— Appraisement  set  aside,  when 132 

148.  The  sale  may  be  made  witliout  appraisement,  when 133 

149.  The  return  of  the  appraisement 134 

150.  The   land  cannot   be   sold   for  less  than  two-thirds   of  the  ap- 

praised value — Exceptions  as  to  claims  due  state 135 

151.  The  property  of  certain  officers  sold  without  appraisement.  .  .  .  135 

152.  The  legal  notice  of  sale  under  the  execution 136 

153.  The  sheriff's  return  of  his  proceedings  under  the  writ 138 

154.  Confirmation  and  approval  by  the  court  of  sheriff's  sale  of  real 

estate    138 

155.  When  objection  to  the  confirmation  of  sale  should  be  made.  .  .  .      140 

156.  The  irregularities  that  are  and  are  not  corrected  by  the  con- 

firmation— The   procedure 141 

157.  The  sheriff's  deed  to  the  purchaser 144 

158.  Printers'  fee  to  be  advanced,  when — Officer  must  demand  same, 

when 145 

159.  Where   sale   must   take    place — Officer   or   appraiser    may    not 

purchase — Persons  in  trust  relations  may  not  bid  at  their 
own    sales 146 

160.  Alias    execution 146 

161.  Procedure  where  several  executions  are  issued — Creditors  may 

direct  several  levies 146 

162.  When  one  other  than  the  officer  making  the  sale  may  execute 

the    deed 147 

1G3.     The  remainder  of   the  proceeds  of  sale  to  be   returned   to   de- 
fendant           148 

164.  The  reversal  of  the  judgment  does  not  defeat  title  of  the  pur- 

chaser           149 

165.  When  the  lien  expires   in  case  no  execution  issues — The  lien 

when    mandate    issues    from    the    Supreme    Court — When 

property  may  be  reappraised  and  sold 149 

166.  The  writ  of  execution  to  be  returned  in  sixty  days 151 

167.  Fee  of  apprai.sers — Penalty  for  failure  to  appear 151 

168.  When  execution  may  issue  to  sheriff  of  another  county 152 

169.  The  officer  may  mail  execution  to  another  county 152 

170.  Money  oollpcted  by  execution  in   another   county  may  not  be 

returned  by  mail 153 

171.  Sureties  of  sheriff  may  be  made  parties  to  the  judgment — Prop- 

erty of  officer  to  be  first  exhausted 153 

172.  Officer  on  amercement  may  collect  original  judgment,  when...      154 

173.  When  contribution  may  be  required 154 


CONTENTS.  Xlll 

SECTION  PAGE 

174.  Equitable   interest    in    lands   subject   to    levy — Stocks — Glioses 

in   action 155 

175.  Pleading,  practice  and  procedure  the  same  in  the  county  court 

as  in  the  district  court 15'6 

176.  When  the  judgment  becomes  a  lien  on  the  real  estate 156 

177.  Execution  to  conform  to  judgment — Special  cases 157 

178.  Judgment   of   justice  of  the   peace,   how  docketed  by  clerk  of 

district   court 15.7 

179.  Judgment  of  a  justice  of  the  peace  becomes  a  lien  on  the  real 

estate,  when 158 

180.  Execution  thereon  may  be  issued  by  the  clerk  of  the  district 

court     158 

181.  Justice   to   certify   costs 159 

182.  Judgment  may  be  revived,  when 159 

183.  The  procedure  by  which  real  estate  is  levied  upon  and   sold 

under    judgment    in    a    civil    action — The   petition    in   the 

action   159 

184.  The  praecipe   for   summons 1'60 

185.  The  summons  in  the  action 160 

186.  The  sheriff's  return 161 

187.  Motion  for   appointment  of  guardian  ad   litem  to   defend  for 

insane  defendant 161 

188.  The  affidavit  in  proof  of  insanity 162 

189.  The  order  of  court  appointing  a  guardian  ad  litem  to  defend 

for    insane   defendant 162 

190.  The  answer  of  guardian  ad  litem  for  insane  defendant 163 

191.  The  judgment  of  the  court  in  the  action 163 

192.  The   execution 164- 

193.  The  sheriff's  return  of  his  proceedings  under  the  execution.  .  .  .  165 

194.  The  appraisement  by  the  sheriff  of  real  estate  under  levy  of 

execution — The  oath  of  the  appraisers — The  appraisement.      166 

195.  Sheriff's  publication  of  notice  of  sale  of  real  estate  under  the 

levy  and  execution 167 

196.  The  proof  of  publication  of  sheriff's  notice  of  sale  of  real  estate.      168 

197.  The  order  of  the  court  approving  and  confirming  the  sale  of 

real  estate  under  the  execution 169 

198.  Sheriff's  deed  where  real  estate  is  sold  under  the  ordinary  writ 

of    execution 170 

199.  Procedure  where  real  estate  is  sold  under  a  venditioni  exponas 

— The  sheriff's   return 172 

200.  The  praecipe  for  the  venditioni  exponas 173 

201.  The  order  of  sale  directed  from  the  clerk  to  the   sheriff — The 

venditioni    exponas 173 

202.  The  appointment  of  appraisers  under  a  venditioni  ex^ponas — 

The  oath  of  appraisers — The  appraisement 174 

203.  The  legal  notice  by  the  sheriff  under  a  venditioni  exponas.  .  .  .      175 

204.  Proof  of  publication  of  sale  by  sheriff  under  a  venditioni  ex- 

ponas          176 


xiv  CONTENTS. 

SECTION  PAGE 

205.  llie  sheriff's  return  of  the  venditioni  exponas 177 

206.  The  procedure  for  sale  of  levy  made  under  foreign  execution — 

The  petition  asking  for  the  marshaling  of  liens  and  sale  of 
real    estate 178 

207.  The  answer  and  cross-petition  of  defendant  setting  up  a   life 

estate  in  the  premises  levied  upon 180 

208.  The  answer  of  a  judgment  debtor  containing  a  general  denial.  .      181 

209.  The   answer   and   cross-petition   of   a   lienholder   setting   up   a 

mortgage    182 

210.  The  judgment  of  the  court  finding  the  issues  in  favor  of  the 

plaintiff  and  decreeing  and  ordering  sale  of  the  real  estate.      183 

211.  The  appointment  of  appraisers — The  oath  of  the  appraisers — 

The   appraisement 185 

212.  The  sheriff's  legal  notice  of  sale  of  real  estate  under  the  order 

of   sale 186 

213.  The  proof  of  publication  of  shcriir's  notice  of  sale  of  real  estate.  187 

214.  The  sheriff's  return  of  his  proceedings  under  the  order  of  sale.  188 

215.  The  confirmation  of  the  sale  and  order  for  deed  and  distribu- 

tion of  the  proceeds  of  sale 189 

216.  The  sheriff's  deed  to  the  purchaser 190 

CHAPTER    VII. 

Law  and  Procedure  by  Wmoir  Real  Estate  is  Sold  by  an  Executor 
ou  Administrator. 

217.  Both  real  and  personal  property  may  be  sold  to  pay  debts — No 

priority  as  to  eitlier 195 

218.  The  court  may  decree  personal  property  to  be  sold  first 195 

219.  No  sale  can  be  made  except  by  order  of  court — One  petition  for 

whole  estate 196 

220.  The  petition  must  be  in  writing — Objections  thereto  must  be  in 

writing     196 

221.  An  executor  or  administrator  may  sell  real  estate,  when 197 

222.  Tlie  allegations  of  the  petition — The  petition  must  \^e  verified.  .  197 

223.  The  order  \\\mn  the  hearing  of  the  petition  must  contain  what.  .  198 

224.  The  order  to  be  posted  in  three  public  places — The  order  to  be 

mailed — The  publication  of  the  order 198 

225.  The  hearing  of  the   petition   by  the  court— The  proof  in  such 

cases     199 

226.  Who  may  be  examined  as  witnesses  at  the  hearing 199 

227.  When  all  the  real  estate  may  be  sold » 200 

228.  The  court  may  order  the  whole  or  part  of  the  estate  sold 200 

229.  The  order  must  describe  the  real  estate  to  be  sold  and  also  the 

terms  of  sale — Sale  may  be  made  for  cash  or  credit 200 

230.  Additional  bond  required  in  sale  of  real  estate,  when -201 

231.  Proceedings  by   an   administrator   or   executor   in   the  sale   of 

land  void,  when 202 


CONTENTS.  XV 

SECTION  PAGE 

232.  When  person  interested  may  apply  for  order  of  sale 203 

233.  The  notice  of  time  and  place  of  sale 203 

234.  Where  public  sale  must  be  made 203 

235.  The  notice  in  case  of  private  sale 204 

236.  The  real  estate  must  be  sold  for  ninety  per  cent,  of  the  ap- 

praisement       204- 

237.  Balance  of  purchase  price  secured  by  mortgage 205 

238.  The  executor  or  administrator  required  to  make  return  of  his 

proceedings  under  the  order  of  sale 205 

239.  Objections  may  be  made  to  confirmation  of  sale 206 

240.  The  confirmation  of  sale — The  deed  to  the  purchaser 206 

241.  The  deed  to  the  purchaser 207 

242.  Facts  to  be  proved  before  confirmation  of  sale 208 

243.  The  sale  may  be  postponed,  when 208 

244.  The  notice  required  in  case  of  postponement 208 

245.  When  property  designated  by  will  must  be  applied  to  the  pay- 

ment   of    debts 2O18 

246.  W'hen   in  an  estate  by  will  an  executor  may   sell  real  estate 

without  order  of  court 209 

247.  When  property  not  disposed  of  by  will  may  be  sold 209' 

248.  The  property  of  legatees  and  devisees  liable  for  debts,  when.  .  209 

249.  Devisees  and  legatees  must  contribute  to  pay  debts,  when....  210 

250.  Decedent's  interest  in  a  contract  for  the  purchase  of  land  may 

be    sold 210 

251.  Such  sale  to  be  subject  to  payments  falling  due 210 

252.  The  purchaser's  bond  and  its  condition 211 

253.  The  confirmation  of  such  sale 211 

254.  Real  estate  may  be  sold  by  an  executor  or  administrator,  sub- 

ject to  mortgage  or  other   liens 211 

255.  The  mortgagee  may  be  a  purchaser 212 

256.  Neglect  or  misconduct  on  the  part  of  executor  or  administrator 

may  cause  liability  on  his  bond 212 

257.  Fraudulent   sale    by    administrator    or    executor — Liability   in 

double  the  value  of  the  property 213 

258.  The   limitation   as  to  the   action   to  recover   land   sold  by  an 

executor    or    administrator 213 

259.  Limitation  not  applicable  to  minors,  when 213 

260.  The  sale  by  an  executor  or  administrator  must  be  returned  at 

the  next  term  of  the  county  court — The  return  of  sale  to 

be  verified 214 

261.  An  executor  or  administrator  may  not  purchase  at  his  sale.  .  .  214 

262.  Property  fraudulently  conveyed  by  a  decedent  may  be  recov- 

ered and  sold  by  the  executor  or  administrator,  when 214 

263.  Executor   or    administrator   not   required   to   sue   unless  upon 

application  of  creditors 215 

264.  Real  estate  so  recovered  may  be  sold,  how 215 


XVi  CONTENTS. 

SECTION  PAGE 

265.  Land  sold  by  executor,  administrator,  guardian,  sheriff  or  com- 

missioner of  court  and  afterward  recovered,  possession  not 
given  until  purchaser  has  been  refunded  purchase  money 
with    interest 215 

266.  How   publication   made 216 

267.  All  orders  must  be  entered  in  minute  form — Need  not  recite 

facts  showing  jurisdiction 216 

268.  Decree   recorded   in   office   of   register   of   deeds — Notice   to   all 

persons     216 

269.  When  description  of  real  estate  need  not  be  published 217 

270.  Parties  to  the  action — How  designated 217 

271.  The  petition— Ordinary   form 218 

272.  The  order  for  the  hearing 219 

273.  llie  notice  of  the  hearing  and  the  proof  of  posting  the  same — 

Proof  of  mailing 220 

274.  The  proof  of  publication  of  the  notice  of  the  hearing  of  the 

petition    221 

275.  The  decree  for  the  sale  of  real  estate 222 

276.  The  order  appointing  appraisers  of  real  estate 223 

277.  The  report  of  sale  of  real  estate  by  administrator 225 

278.  The  notice  of  the  hearing  of  administrator's  return  of  sale  of 

real    estate 226 

279.  Order  for  hearing  of  the  return  of  sale  of  real  estate  by  an 

administrator     227 

280.  The  notice  of  hearing  return  of  sale  of  real  estate 228 

281.  The  legal  notice  of  sale  of  real  estate  by  an  administrator  and 

tlie  proof  of  posting  same 229 

282.  The  notice  of  publication  and  the  proof  of  sale 230 

283.  The  appraisal  before  private  sale  of  land  by  an  administrator.  232 

284.  Ihe  bid  in  writing 232 

285.  The  order  approving  and  confirming  sale  of  real  estate  by  an 

administrator — Order  for  deed  to  purchaser 233 

286.  The  form  for  a  deed  to  purchaser  of  real  estate  at  an  admin- 

istrator's  sale    thereof 234 

CHAPTER    Ylll. 

The  T.aw  .and  Procedurk  by  Which  Real  Estate  is  Sold  Under 
Attachment  Proceedings. 

287.  Introductory  statomont — The  statute  must  be  strictly  followed .  238 

288.  An  auxiliary  remedy  allowed  only  after  suit  is  brought 239 

289.  When  the  action   is  deemed  commenced \ 240 

290.  The  affidavit  for  the  attachment — What  it  must  contain 240 

291.  Tbp  grounds   for  attachment 242 

292.  ^^  hen  tlie  defendant,  or  one  of  several  defendants,  are  nonresi- 

df-nt^  of  the  state 243 

293.  Hns  absconded  with  intent  to  defraud  his  creditors 245 

294.  When  the  debt  has  been  fraudulently  or  criminally  incurred.  .      246 


CONTENTS.  XVll 

SECTION  PAGE 

295.  Fraudulent   disposition   of   property 247 

296.  The   attachment   bond — Attorney's   fee 248 

297.  The    order    of    attachment,    its    requirements    and    to    whom 

directed    2'*^ 

298.  The  order  of  attachment  may  be  issued  to  different  counties.  .  .  249 

299.  When    returnable 249 

300.  The  order  in  which  the  writ  is  to  be  executed 250 

301.  The  manner  of  the  execution  of  the  order 250 

302.  The  officer  may  leave  property  in  possession  of  whom — Reten- 

tion   bond 251 

303.  Different   attachments — Tlie  inventory  and  appraisement 251 

304.  How  subsequent  attachments  may  be  made 251 

305.  What  the  officer's  return  of  the  order  must  show 252 

306.  A  receiver  mav  be  appointed  to  take  charge  of  property — His 

bond    ....'. 252 

307.  The  receiver's  report 252 

308.  Sheriff  to  act  as  receiver,  when 253 

309.  The   attachment   discharged,   when — Bond 253 

310.  The   defendant   may   execute    bond   before   sheriff'   or   clerk    in 

vacation     253 

311.  Judgment  in  the  action — How  satisfied 254 

312.  Court  may  compel  delivery  of  attached  property 254 

313.  May  order  retaking  of  property 255 

314.  Reference  may  be  ordered,  when 255 

315.  Death  of  defendant 255 

316.  Defendant  may  move  for  additional  security,  when 255 

317.  The   defendant  may  move  to   discharge   attachment — The   evi- 

dence in   the  case 256 

318.  The  attachment  before  it  is  due 256 

319.  The   procedure  by  which  real  estate   is   sold  under  a  writ  of 

attachment — The  form  of  the  petition  in  such  case 257 

320.  The  form  for  the  affidavit  in  attachment 258 

321.  The  form  for  the  bond  in  attachment 259 

322.  The  form  for  the  order  of  attachment  issued  by  the  clerk  to 

the  sheriff 260 

322a.  The  form  for  sheriff's  return  of  the  order  of  attachment  and 

the  appraisement  thereunder 260 

323.  The  form  for  the  affidavit  for   service  by  publication  upon  a 

nonresident  defendant  in  attachment 261 

324.  The  form  for  notice  by  publication 262 

325.  The  order  of  sale  in  attachment  proceedings 263 

326.  The  form  for  proof  of  publication  of  the  notice 263 

327.  The  form  for  the  judgment  and  order  of  sale  of  the  attached 

property     264 

328.  The  form  for  the  order  of  sale  issued  by  the  clerk  to  the  sheriff 

in   attachment  proceedings 265 

329.  The  form  for  the  legal  notice  of  sale  of  real  estate  under  at- 

tachment proceedings 266 


Xviii  CONTENTS, 

SECTION  ^^^^ 

330.  The  form  for  proof  of  publication  of  notice  of  sale 267 

331.  The  appointment  of  appraisers  of  real  estate,  the  oath  of  the 

appraisers,  and  appraisement — In  attachment 267 

33e.     The  order   confirming  the  sale,   ordering  distribution,  and  the 

execution    and    delivery    of    a    deed    to    the    purchaser    at 

sheriff's  sale  of  property  attached 268 

333.     Form  for  sheriff's  deed  for  real  estate  sold  under  attachment 

proceedings    2"" 


CHAPTER    IX. 

The  Law  and  Procedure  ix  the  Foreclosure  of  an  Attobney's  Lien 

FOR  Fees. 

334.  The  attorney's  lien  on  personal  property  and  judgment 273 

335.  May  retain  money  and  property  to  enforce  lien,  when 273 

336.  Lien  may  be  released  by  bond 274 

337.  The  attorney's  lien  for  his  services — The  statute 275 

338.  Contingent  fee  authorized — The  statute 275 

339.  Liability  of  adverse  party  for  fees  in  case  of  settlement — The 

statute   276 

340.  The  measure  of  the  amount  of  recovery  in  case  settlement  is 

made  without  the  consent  of  the  attorney 276 

341.  Decided    cases 277 

342.  The  eflect  of  notice — "Lien  claim"  endorsed  in  writing  on  plead- 

ing   filed 278 

343.  The    settlement  without   the    notice    to,    or    knowledge   of   the 

attorney  having  a  lien 279 

344.  The    attorney    may    have    the   cause    heard    to    determine    the 

amount  of  his  fee 280 

345.  Right  to  lien  when  services  partly  performed  by  attorney 281 

346.  Effect  of  agreement  not  to  settle  or  compromise  without  the 

consent  of  the  attorney 281 

347.  Specific  performance  of  contract  for  portion  of  land  to  be  re- 

covered,  will    be   enforced 283 

348.  Should  the  suit  to  foreclose  the  lien  be  a  separate  action  or  by 

cross-petition,   or  by   intervening  petition   in   the   original 

action     283 

340.     Contract  of  infant  or  next  friend  to  employ  counsel,  when.  .  .  .      286 

350.  TTic  statute  authorizing  the  prosecution  or  defense  on  behalf 

of  an  infant 287 

351.  TTistory  of  the  law  ns  to  the  functions  of  the  next  friend  and 

guardian  ad  litem 287 

352.  The  court  has  power  to  order  payment  of  fee  of  guardian  ad 

litem   289 

353.  The  next  friend  no  party  to  the  action — Cnn  employ  counsel.  .     290 

354.  The  next  friend  and  guardian  ad  litem  perform  the  same  func- 

tions       290 


CONTENTS.  XIX 

SECTION  PAGE 

355.  The  power  of  infcant  or  next  friend  to  employ  counsel 291 

356.  The  employment  of  an  attorney  is  a  necessary,  and  the  infant 

alone  may  make   the  contract — A  necessary   in  an   action 

for    personal    injury 292 

357.  The  action  does  not  abate  on  the  death  of  the  next  friend — 

Counsel  fees  in  such  case  should  -be  paid 295 

358.  The  attorney  for  an  infant  has  a  lien  on  his  client's  cause  of 

action  for  his  fee 295 

359.  The  infant,  or  next  friend,  or  both,  can  make  contract  with  an 

attorney  for  a  contingent  fee 295 

360.  The  law  as  to  procedure  after  judgment 296 

361.  Procedure  by  which  the  lien  of  an  attorney  for  his  services  is 

foreclosed  on  real  estate — Form  for  the  petition 296 

362.  Form    for    decree    of   court    foreclosing    lien   of    attorney    for 

services     301 

363.  Form  for  order  of  sale  directed  from  the  clerk  to  the  sheriff.  .  303 

364.  Form  for  the  appraisement  of  the  real  estate 304 

365.  The  form  for  the  oath  of  the  appraisers 305 

366.  Form  for  the  appraisement  of  the  real  estate 805 

367.  Form  for  the  publication  of  the  notice  of  sale  of  the  real  estate 

by  the  sheriff 305 

368.  Form  for  proof  of  publication  of  notice  of  sale  of  real  estate.  .  306 

369.  Form  for  the  sheriff's  return  of  his  proceedings  under  the  writ.  307 

370.  Form  for  confirmation  of  sale 308 

371.  Form  for  sheriff's  deed  to  the  purchaser  of  said  real  estate. .  .  309 

CHAPTER   X. 

Pbocedube  by  Which  Trustee  in  Bankruptcy  Sells  Real  Estate  at 

Private  Sale. 

372.  The  source  of  the  trustee's  authority  to  sell 311 

373.  The  appraisal  of  the  real  estate 312 

374.  The  manner  in  which  the  sale  is  conducted 312 

375.  The  order  of  the  court  appointing  appraisers 313 

376.  The  oath   of  appraisers,   the  appraisement  and  return  of   the 

appraisers    313 

377.  The  petition  to  sell  real  estate  at  private  sale,  subject  to  in- 

cumbrances      314 

378.  The  order  to  sell  real  estate  at  private  sale,  subject  to  incum- 

brances       315 

379.  The  entry  confirming  such   sale 316 

380.  The  petition  for  sale  of  real  estate  by  public  auction 316 

381.  The  order  of  the  court  authorizing  sale  at  public  auction 317 

382.  The  petition  for  sale  of  real  estate  at  public  auction,  subject 

to    liens 317 

383.  The  order  and  decree  of  the  court  authorizing  such  sale 318 

384.  The  deed  from  th£  trustee  to  the  purchaser  at  trustee's  sale  of 

real  estate  in  bankruptcy 318 


XX  CONTENTS. 

CHAPTER    XI. 

CONVEYANCES. 

1.  Conveyancing. 

2.  -Conveyance — Specific  Performance  of. 

3.  Conveyance — Cancellation  of. 

4.  Conveyance — Reformation  of. 

5.  Conveyance — Fraud  of  Creditors. 

1.    Conveyance  of  Real  -E'state  and  Procedure  Connected  Therewith. 

385.  Who  may  hold,  convey  and  mortgage  real  estate 322 

386.  Witnesses  to  execution  of  conveyances  not  necessary 323 

387.  Attorney  in  fact  may  execute  instrument,  when 323 

388.  Deed  or  instrument  affecting  real  estate  must  be  in  writing..  323 

389.  When  husband  or  wife  may  convey  homestead 324 

390.  Husband  conveying  homestead  concluded   thereby 324 

391.  Who  estopped  from  denying  validity  of  deed 324 

392.  Deeds  executed  by  sheriff,  how  acknowledged 325 

393.  Husband  or  wife  may  deed  real  estate  not  the  homestead 325 

394.  Words  relating  to   real  estate   defined 325 

395.  Contract  valid  against  third  persons,  when 326 

396.  What  conveyances  deemed  mortgages 326 

397.  Separate  instruments  deemed  parts  of  each  other 326 

398.  Innocent   purchasers   protected,   when 327 

399.  Conveyance  deemed  an   assignment,  when 327 

400.  Quitclaim  deed — What  is  conveyed  thereby 327 

401.  Warranty  deed — What  is  conveyed   thereby 328 

402.  Power  of  attorney — How  executed — Where  filed 329 

403.  What   grantor    is   affected    where   land    recovered   by   action — 

Grantors  to  be  notified 329 

404.  Wlio  may  recover  on  warranty — Attorneys'  fees 330 

405.  Proceduie  when  warrantor  fails  to  defend  action 330 

406.  What  instruments  entitled  to  record 330 

407.  Duty  of  register  of  deeds  when  instrument  presented  for  filing.  330 

408.  What  instruments  of  conveyance  may  be  used  as  evidence  in 

court     331 

409.  Requirements  as  to  printing  and  writing  in  a  conveyance....  331 

410.  Corporation  may  convey  by  attorney,  when 3.32 

411.  Wliat   instruments  executed  by  a  corporation  or   its   attorney 

valid     332 

412.  Conveyance  void  for  want  of  consideration,  when 332 

413.  Every  estate  in  land  deemed  fee  simple  unless  limited  by  special 

words 332 

414.  Will  may  be  recorded  with  like  effect  as  deed,  when 333 

415.  .Judgment  may  be  filed  and  recorded — Effect  of 333 

416.  Minor  may  hold  title  to  real  estate,  when 333 

417.  Form   for   acknowledgment   of   any   instrument    affecting   real 

estate    333 

418.  Before  wliom  acknowledgments  may  be  taken,  ,  , 334 


CONTENTS.  XXI 

SECTION  PAGE 

419.  Certain  acknowledgments  legalized  by  Legislature SM 

420.  Statutory  form  for  deed 334 

421.  Difference  in  form  for  a  warranty  and  quitclaim  deed 335 

422.  Tlie  manner  in  which   instruments  of  conveyance  by  corpora- 

tions must  be  executed 335 

423.  When  corporate  seal  to  be  attached  to  instrument 336 

424.  Statutory  form  for  acknowledgment  by  corporation 336 

425.  Form  for  deed  by  a  corporation 336 

426.  Form  for  deed  conveying  life  estate,  with  remainder  over....  337 

427.  Form   for   deed   conveying   remainder  estate   subject  to   a   life 

estate   338 

428.  Form  for  deed  by  tenant  for  life 339 

429.  Form  for  power  of  attorney  to  sell  and  convey  real  estate,  price 

and  terms  discretionary 340 

430.  Form  for  petition  for  breach  of  covenant  of  seizin 340 

431.  Form  for  petition  for  breach  of  covenant  against  incumbent. .      342 

2.     The  Procedube  by  Which  a  Contract  for  the  Purchase  and  Sale 
OF  Real  Estate  is  Specifically  Enforced. 

432.  Preliminary    statement 344 

433.  Proper    parties 344 

434.  Contract  to  be  performed  must  be  just  and  fair  in  all  its  parts  344 

435.  Contract  must  not  be  unconscionable 345 

436.  It  must  be  certain  in  its  terms 345 

437.  It  must  be  possible  to  perform  it 345 

438.  Contracts  specifically  enforced  though  vendee  at  fault 346 

439.  Contract  optional  as  to  one  party  optional  as  to  both 346 

440.  Defective  description  cured,  when — Vendor  estopped  to  object, 

when     347 

441.  Contract  by  agent  without   naming   principal   cannot  be   spe- 

cifically enforced 348 

442.  Time  not  the  essence  of  a  contract,  when 348 

443.  Performance  will  not  be  decreed  where  title  is  defective 349 

444.  Title,  unless  refused  by  purchaser,  precludes  an  action  by  him 

for   specific   performance 349 

445.  The  evidence  required  in  proof  of  the  contract 350 

446.  Evidence — Tender  of  abstracts — Affidavits  as  part  of  abstract 

may  be  evidence,  when 350 

447.  The   statute    of   frauds 350 

448.  The  statute  of  frauds — The  writing  excludes  all  other  nego- 

tiations          352 

449.  Statute  of  frauds — Contracts  made  by  agent  of  owner  of  real 

estate    352 

450.  Statute   of   frauds — Part   performance    satisfies   the    statute — 

Possession    353 

451.  Statute  of  frauds — Verbal  contract  partly  performed   may  be 

specifically    enforced 354 

452.  Statute  of  frauds — Description  defective — Undisclosed  principal     355 


Yvn  CONTENTS. 

SECTION  PAGE 

453.  Statute  of  frauds — The  parties  to  a  written  contract — Within 

the  statute  contract  may  not  modify  is  terms  orally 356 

454.  Statute  of   frauds — Contract  may  be  made   partly  by  letters, 

writing  and  telegrams 356 

455.  Statute  of  frauds — A  receipt  is   not  sufficient  to   satisfy  the 

statute    357 

456.  Bond  to  build  may  be  specifically  enforced,  when 357 

457.  An  agreement  to  dispose  of  property  by  will  specifically  en- 

forced, when 358 

458.  Compensation    allowed    when    specific    performance    ca«inot    be 

decreed     358 

459.  Decree  of  court  in  default  of  deed  to  operate  as  a  conveyance — 

Sheriff  may  make  conveyance 359 

460.  Decree  may  contain   terms  of  mortgage   agreed  upon  by  con- 

tract         359 

461.     The  procedure  where  the  statute  of  frauds  is  interposed  as  a 

defense 359 

462.  The  venue  of  the  action 360 

463.  The  procedure  by  which  a  contract  for  the  sale  of  real  estate 

is    specifically*  enforced — Petition    by    vendor    to    compel 
vendee  to  complete  contract  of  purchase 360 

464.  The  petition  by  vendee  to  compel  vendor  to  make  deed 361 

465.  Petition  to  enforce  performance  of  verbal  contract  of  sale.  .  .  .      362 

466.  Another  form  for  petition  by  vendor  against  vendee  for  specific 

performance    364 

467.  Another  form  of  petition  by  vendee  against  vendor  to  compel 

performance  of  oral   contract   of   sale 365 

468.  Form  for  petition  to  compel  specific  performance  of  agreement 

for  exchange  of  property 366 

469.  The  decree  awarding  specific  performance  of  a  contract  for  the 

purchase  and  sale  of  real  estate 367 

470.  Form  where  sheriff"  executes  deed 368 

3.     Conveyances — Tiie  Law  and  Procedure  by  Which  Instruments  of 
Conveyance  are  Canceled. 

471.  Procedure — General    statement 370 

472.  Specific  acts  of  fraud  should  be  alleged  and  proved 370 

473.  The  jury  in  the  action  to  cancel  instrument  of  conveyance. .  .  .  371 

474.  The  petition  need  not  allege  inadequacy  of  legal  remedy 371 

475.  The   statutory   regulations   as   to   when   party   may   rescind    a 

contract    372 

476.  Rescission  and  cancellation  allowed  for  mistake^  when 373 

477.  Canceling  and  rescinding — How  and  when  allowed 373 

477a.  Mental   incapacity  to  execute  deed 374 

478.  The  rule  as  to  notice 375 

478a.  Allegations  of  ofler  to  restore  consideration 375 

47Sb.  Federal  court  power  to  cancel  conveyance  of  Indian  lands ....  375 

479.  Form  for  petition  for  cancellation  of  deed 376 


CONTENTS.  XXUl 

SECTION  PAGE 

480.  Another  form  for  cancellation  of  deeds,  mortgage  and  lease.  .  .  376 

481.  Decree  of  court  canceling  instruments  set  forth  in  the  petition  378 

482.  Another  form  for  decree  for  cancellation  of  deeds 379 

4.     Conveyances — Reformation  of  Instruments  of. 

483.  The  parties  defendant  in  an  action  to  reform  an  instrument  of 

conveyance     381 

484.  The  petition  may  be  amended  so  as  to  reform  a  mortgage  sued 

on    382 

485.     The  nature  of  the  action  to  reform  a  deed  or  other  instrument 

of  conveyance 382 

486.  When  a  court  of  equity  should  interfere 383 

487.  The    instrument   may    be    reformed    and    specific    performance 

decreed   384 

488.  The  rule  as  to  bona  fide  purchasers 385 

489.  The  lien  of  a  mortgage  reformed  prior  to  the  lien  of  attaching 

creditors,    when 385 

490.  A  deed  may  be  corrected  so  as  to  make  the  grantee  assume 

existing  mortgages,  when 386 

491.  Party  seeking  reformation  must  have  superior  equity 386 

492.  Mutuality  not  always  an  essential  requisite 386 

493.  Equity  will  interfere  sometimes  to  correct  a  mistake  of  law.  .  386 

494.  Estoppel 387 

495.  Form  for  petition  correcting  description  in  a  mortgage  and  set- 

ting aside  a  release  of  mortgage  made  under  mistake 388 

496.  Decree  of  court  correcting   said  mortgage,   finding   service  by 

publication    and    appointment   of    guardian    ad    litem    for 

minor    defendants 389 

497.  Procedure  by  which  a  deed  is  reformed — Form  for  petition...  392 

498.  Form  for  praecipe    396 

499.  Form  for  summons    397 

500.  Form  for  affidavit  for  service  by  publication 398 

501.  Form  for  the    notice 399 

502.  Form  for  proof  of  publication 400 

503.  Form  for  decree  reforming  deeds 400 

5.     Conveyances  in  Fraud  of  Creditors — The  Law  and  Procedure. 

504.  Fraudulent  conveyance — The  statute 404 

505.  Debtor  may  prefer  creditors 405 

506.  The  preference  by  mortgage 406 

507.  The  preference  may  be  given  under  a  general  assignment  for 

the  benefit  of  creditors 407 

50'8.     Exceptions  as  to  exempt  property 408 

509.  The  fraud  may  be  avoided,  when 408 

510.  Question  of  fraudulent  intent  one  of  fact — Exceptions 409 

511.  Fraudulent  debt  due  when  liability  occurred 409 

512.  The  procedure  by  which  a  conveyaiice  in  fraud  of  creditors  is 

set    aside — The    petition — Ordinary    form 410 

513.  Petition  of  judgment  creditor  to  set  aside  fraudulent  mortgage 

and  marshal  liens 411 


xxiv  CONTENTS. 

SECTION  PAGE 

514.  Petition  to  set  aside  fraudulent  conveyance  for  sale  of  prem- 

ises      413 

515.  Petition   to    set    aside    fraudulently    confessed    judgment    and 

deed   made  thereunder 415 

516.  Another  form  for  petition  to  set  aside  fraudulent  deed 416 

CHAPTER    XII. 

DESCENT   AND   DISTKIBUTIOK 

1.  Oklahoma  Statute. 

2.  Five  Civilized  Tribes 

3.  Arkansas  Statute. 

4.  Dower  and  Assignment  Theeeof  Under  Arkansas  Statute 

5.  Law  op  Wills. 

6.  Probate  of  Wills. 

1.    Title  by  Descent — The  Oklahoma  Statutes. 

517.  General  discussion 420 

518.  Dower  and  curtesy  abolished  in  Oklahoma 421 

519.  Discussion  of  terms — Statutory  definition  of  succession 421 

520.  Proper  persons  to  take  property  of  a  deceased 421 

521.  What  property  passes  to  the  heirs 422 

522.  Inheritance  by  illegitimate  child 422 

523.  Inheritance  from  an  illegitimate  child 423 

524.  Degrees  of  kindred,  how  establislied 423 

525.  Lineal   and  collateral  descent 423 

526.  Tlie  lines  ascending  and  descending 424 

527.  The  degrees  in  the  direct  line 424 

528.  The  degrees  of  the  collateral  line 424 

529.  Inheritance  by  kindred  of  the  half  blood 424 

530.  Advancement  of  child's  part 425 

531.  Advancement — Excess   not    refunded 425 

532.  Advancement  defined 425 

533.  Advancement — Expressed  value  governs,  when 425 

534.  Advancement — When   the   descendant   receiving   it   dies   before 

decedent   426 

535.  Inheritance    by    representation 426 

536.  Aliens   may   inherit 426 

537.  An  estate  escheats,  when — Subject  to  what  charges 426 

538.  Heirs  must  pay  obligations  of  decedent 427 

539.  The  order   of  succession — Wife  and   children — Lineal  descend- 

ants       427 

540.  Where  decedent  was  married  more  than  once 427 

541.  Where  decedent  leaves  no  surviving  husband  or  wife 428 

542.  Where  decedent  leaves  no  issue 428 

543.  Where   property   acquired   by   joint   industry  of   husband   and 

wife    429 


CONTENTS.  XXV 

SECTION  I'AGE 

544.  Where  there  is  no  issue,  no  husband,  no  wife,  no  father  and 

no  mother ^^29 

545.  Where  there  is  no  issue,  no  husband,  no  wife,  no   father,  no 

brother   and   no   sister 429 

546.  Where  decedent  leaves  a  surviving  husband  or  wife,  no  issue, 

no  father,  no  mother,  no  brother  and  no  sister 430 

547.  Where  decedent  leaves  no  issue,  no  husband,  no  wife,  no  father, 

no  mother,  no  brother,  no  sister 430 

548.  Where  the  decedent  leaves  several  children,  or  one  child  and 

the  issue  of  one  or  more  children,  and  any  such  surviving 
child  dies  under  age,  and  not  having  been  married,  holding 
an  estate  of  inheritance 430 

549.  Where  decedent  dies  under  age,  unmarried,  and  all  the  other 

children  of  his  parents  are  dead,  and  any  of  them  have 
lawful  issue,  leaving  an  estate  of  inheritance  from  his 
parents     431 

550.  The  estate  will   escheat,   when 431 

550a.  Change  in  statutes  of  Oklahoma 431 

2.     Title  by  Descent  for  Five  CrviLizED  Tribes. 

551.  Descent   for   Creek,  Cherokee,   Choctaw,   Chickasaw   and  Semi- 

nole  nations 432 

3.    Law  of  Descents — The  Arkansas  Statute. 

552.  Children   inherit,  when 433 

553.  Inheritance  when  there  are  no  children  nor  their  descendants, 

no  father,  no  mother,  no  brother,  or  sister,  or  their  de- 
scendants           434 

554.  Construction  of  statute — Kelly  v.  McGuire- -Ancestral  and  non- 

ancestral  property — Descent  per  stirpes  and  per  capita.  .  .     434 

555.  Posthumous     children 441 

556.  Illegitimate  children  inherit  from  the  mother — Marriage  will 

legitimatize,    when 441 

557.  Children  where  marriage  is  null 442 

558.  An  alien  may  inherit 442 

559.  Where  there  are  no  children  nor  their  descendants,  no  father, 

no  mother  nor  their  descendants,  or  any  paternal  or  ma- 
terial kindred  capable  of  inheriting 442 

560.  Per  capita  and  per  stirpes 443 

561.  Ancestral   and   nonancestral   property 445 

562.  Where  there  is  default  of  father  and  mother 449 

563.  Half    bloods 449 

564.  Where  not  provided  by  statute   inheritance  to  go  as  at  com- 

mon  law — Several   inherit  as   descendants  in  common ....  450 

565.  Conflict  of   laws 450 

566.  Construction  of  the  statutes  of 450 

567.  Heir  at  law  may  be  made  by  declaration  in  writing — Declara- 

tion must  be  recorded,  or  same  shall  have  no  force 451 


Xxvi  CONTENTS. 

SECTION  PAGE 

568.  Advancement  by  settlement  of  portion  to  child — How  reckoned 

and  effect  of — When  not  equal  to  share  of  estate — Value 
of  such  advancement,  how  ascertained — Maintenance,  edu- 
cation and  the  like  not  to  be  taken  as  advancement,  when.  451 

4.     Aekansas  Statute  of  Descent — Dower  and  Assignment  Thereof. 

569.  Widow's   dower   in   lands 454 

570.  Widow  of  an  alien  to  have  the  same  dower  as  if  her  husband 

had  been  a  native-born  citizen 454 

571.  Dower  in  case  of  exchange  of  land 454 

572.  Mortgage  of  husband  not  to  affeat  widow's  dower 455 

673.     Otherwise  where  mortgage  given  for  purchase  money 455 

574.  Widow's    right    in    surplus    after    discharging    mortgage    for 

purchase    money 455 

575.  Widow,  no  dower  in  lands  held  by  her  husband  as  mortgagee.  .  456 

576.  In  case   of   divorce   or   misconduct   of   wife,   she   shall   not  be 

endowed   456 

577.  Conveyance  or  provision  in  lieu  of  dower 456 

578.  How  assent  given   in  such  case 456 

579.  When  assented  to  by  wife  to  bar  dower 457 

580.  Cases  in  which  she  may  elect  to  accept  provision  or  take  dower  457 

581.  When  provision  in  lieu  of  dower  forfeited 458 

582.  Widow's  dower  not  to  be  barred  by  the  conveyance  of  the  hus- 

band or  any  judgment  or  decree  against  him 458 

583.  May  tarry  in  the  mansion  house,  how  long 458 

584.  Duty  of  commissioners  appointed  to  lay  off  dower 459 

585.  Dower  in  lands  and  personalty  when  the  husband  dies  leaving 

no    children     459 

586.  W^idow's  dower  descends,  how 400 

587.  Devise  of  real  estate  by  husband  deemed  in  lieu  of  dower.  .  .  .  460 

588.  Widow  has  her  election  in  such  cases;  proceedings 460 

589.  Widow   may   relinquish   dower   and   take   absolutely    a   child's 

share   of   the   estate 461 

590.  Laws    investing   certain    estates    in    widow    and    children    not 

repealed    402 

591.  Widow  shall  be  endowed  in  all  the  lands  sold  in  the  lifetime  of 

the  husband  without  her  consent 462 

592.  Diity  of  heirs  to  assign  dower 462 

593.  How  widow  may  proceed  when  dower  not  assigned  in  due  time; 

form  of  petition  for  dower 463 

594.  When  petition  stands  for  hearing;   order  thereon 463 

595.  Constructive    service *. 464 

596.  Verification  of  pleadings  not  required 464 

597.  Who  may  be  admitted  to  defend 464 

598.  Party  may  contest  right   of   petitioner  by   answer;    questions, 

how    tried 464 

599.  Commissioners  to  be  appointed  and  their  duties 465 

600.  Report   of   commissioners 465 


CONTENTS.  XXVn 

SECTION  PAGE 

601.  Proceedings-  on  report 465 

602.  Order  when  lands  will  not  admit  of  division 465 

603.  Widow  may  recover  and  defend  possession  of  her  dower 465 

604.  Heirs'  alienation  of  land  not  to  affect  widow's  dower 466 

605.  Of  the  crop  growing  on  the  land  assigned  as  dower  at  widow's 

death    466 

606.  Costs  to  be  apportioned,  how 406 

607.  Procedure  for  assignment  of  dower — For  assignment  of  dower 

by  heirs    466 

608.  Form  for  the  petition  for  the  assignment  of  dower 468 

609.  Form  for  answer  of  heirs  joining  in  the  prayer  of  the  petition.  468 

610.  Decree  of  court  awarding  dower  to  widow 469 

'611.     The  writ  of  dower  issued  by  the  clerk  of  the  sheriff 470 

612.  The  return  of  the  sheriff  of  his  proceedings  and  of  the  commis- 

sioners assigning  dower 470 

613.  The  decree  of  the  court  confirming  the  report  of  the  commis- 

sioners   assigning   dower 471 

613a.  Curtesy  under  the  Arkansas  law — Tenant  by  curtesy  defined.  .  472 

5.  Title  to  Real  Estate  by  Last  Will  and  Testament — The  Law  and 
Procedure  by  Which  the  Probate  of  a  Last  Will  and  Testament 
IS  Contested  and  by  Which  a  Will  Probated  is  Set  Aside. 

614.  Who  may  make  a  will 476 

615.  Mental    capacity 476 

'616.     Insane    delusion 477 

617.  Undue  influence,  duress,  menace,  fraud 478 

618.  Undue  influence,  execution,  evidence  of 481 

619.  Undue   influence — The   admissibility   of   evidence   of   testator's 

declarations    as    to    undue    influence — Declarations    of   the 

beneficiary     482 

620.  The  burden  of  proof  in  case  of  testamentary  incapacity 483 

621.  Construction  of  statute  as  to  notice — Limitation  of  action  as 

to     heir 486 

622.  Rights  of  married  woman 488 

623.  What  may  be  disposed  of  by  a  will 488 

624.  Will  may  be  made  to  anyone  capable  of  taking 489 

625.  Nuncupative   will 489 

626.  Mutual     will 489 

627.  A  conditional  will  may  be  denied  probate 490 

628.  Execution  of  wills — Olographic  wills 490 

'629.     Nuncupative  will  need  not  be  in  writing 491 

630.  Witnessing   a    will 491 

631.  Codicil— Effect  of 491 

632.  Tlie  law  of  what  place  governs  as  to  a  will 491 

633.  Tlie  law  must  be  followed  as  to  the  execution  of  a  will 491 

634.  Change  of   domicile 492 

635.  Where  a  will  may  be  deposited 492 

636.  How  such  will  may  be  delivered 492 


XXviil  CONTENTS. 

SECTION  PAGE 

637.  When  the  county  judge  may  open  will 493 

638.  Proof  of  lost  or  destroyed  will 493 

■639.     Revocation  of  wills 493 

640.  Proof  of  destruction  of  will 493 

641.  Effect  of  partial  erasure 494 

642.  Revocation  of  a  will  in  duplicate 494 

'643.     Revocation  of  subsequent  will — Effect  of 494 

644.  Effect   of    subsequent   will 494 

645.  Marriage  of  and  issue  after  will  made 494 

646.  Marriage  of  woman  revokes  will 495 

647.  Sale  of  devised  property — Effect  of 495 

648.  Incumbrance  not  a   revocation 495 

649.  Partial   disposal   after   will 496 

650.  When  such  act  revokes  will 496 

«51.     Codicils     496 

652.     Succession  supplements  will,  when 496 

'653.     Devisee's  descendants  take  property 497 

654.  Gift  to  a  witness  void 498 

655.  Gift  to  a  witness  not  void,  when 498 

656.  Probate  of  will  not  prevented,  when 498 

657.  Property  acquired  after  will  made 498 

658.  Intention  of  testator  governs 499 

659.  Will  excludes  all  oral  declarations 499 

660.  Rules  of  interpretation 499 

661.  Instruments  construed   together 499 

662.  Irreconcilable   parts 500 

663.  Distinct  devises  not  affected  by  inaccuracies 500 

664.  Ambiguities,  how  explained 500 

665.  Words  taken  in  ordinary  sense 500 

666.  Rule    of    construction 500 

667.  Validity  of  will  favored 501 

668.  Technical    words 501 

669.  Words   of   inheritance 501 

670.  Devise  in  general  terms 501 

671.  Residue  of   real   estate 501 

672.  Residue  of  personalty 502 

673.  Effect   of   certain   terms 502 

674.  Terms  mentioned  are  words  of  donation 502 

675.  Postponement  of  possession 502 

676.  Class    includes    all 503 

677.  Conversion  of  realty 503 

678.  Unborn   child   included » 503 

679.  Imperfect   description  corrected,   how 503 

680.  Testamentary  dispositions  vest  at  death 504 

681.  Can   be  divested,  when 504 

682.  Death  of  devisee — Effect  of 504 

683.  Interest  of  persons  in  remainder 504 

684.  Conditional  disposition  defined 504 


CONTENTS.  XXIX 


SECTION 


PAGE 


685.     Condition  precedent  defined 505 

Q.S6.     Unknown   unavoidable  event — Effect  of 505 

687.  Substantial  compliance   sufficient 605 

688.  Condition   subsequent    defined 505 

689.  Devise  to  more  than  one  person 505 

690.  Gifts  do  not  reduce  legacies 505 

691.  Legacies    classified '506 

692.  Property  chargeable  with  payment  of  debts 506 

6'93.     Order  in  which  property  applied  to  debts 506 

694.     For  payment   of   legacies 507 

i695.     Preferred    legacies 507 

696.  Class   only   affected •' 508 

697.  Representative  may  sell 508 

698.  Proved  devise  impairs  deed  by  heir 508 

699.  Succession  to   limited  devises 508 

700.  Income  after   death 509 

701.  Legacy,  etc.,  may  be  satisfied  before  death 509 

702.  Legacies  due  in  one  year 509 

703.  Interest  on  legacies 509 

704.  Intention   controls    509 

705.  Unnamed   executor 509 

706.  Authority  void,  when 510 

707.  Power  of  executor  begins,  when 510 

708.  Limitation  of   power 510 

709.  Will  includes  codicil 510 

710.  Law  of  place  governs,  when 510 

711.  Liability  of  devisees  and   legatees 510 

712.  Will  may  be  recorded  with  like  effect  as  a  deed 511 

712a.  Manner   in  which  will  may  be  made  by  full-blood   Indian  of 

Five  Civilized  Tribes 511 

712b.  Will — Choctaw  and  Chickasaw. .  ; 513 

6.     The  Pbocedube  in  the  Pkobate  and  Contest  of  a  Wii^. 

713.  Jurisdiction  of  probate  court 516 

714.  Proceedings  of  the  court,  how  construed 516 

715.  Under  substitution  of  jurisdiction  rights  remain  the  same. .  .  .  517 

716.  Where  wills  proved — Letters  testamentary  granted 517 

717.  Custodian  of  wills — Thirty  days — Must  deliver   to   whom....  518 

718.  Executor  or  other  person  interested  may  petition  for  probate 

of   will 518 

719.  What  petition  must  show 518 

720.  When  executor  held  to  renounce  his  right  to  letters 519 

721.  Will  in  possession  of  third  person — Procedure 519 

722.  Petition  filed — Will  produced — ^Court  must  fix  day  for  hearing  519 

723.  Notice  to  heirs — How  given 520 

724.  Court  may  receive  petition  at  chambers  or  out  of  term  time.  .  520 

725.  Proof  of  service  of  notice — ^Hearing  proof  of  will 521 

726.  Persons  interested  may  appear  and  contest  will 521 


XXX  CONTENTS. 

SECTION  PAGE 

727.  Procedure  where  no  person  appears  to  contest 521 

728.  Holographic   will — How    proved 522 

729.  Written  grounds  of  opposition  to  probate  must  be  filed 522 

730.  The  court  must  give  in  writing  findings  of  fact  and   conclu- 

sions of  law 522 

7'31.     Subscribing  witnesses  who  must  be  produced  and  examined — 

Proof   of   handwriting   admitted 523 

732.  Testimony  of  each  witness  reduced  to  writing 523 

733.  Certificate  of  proof  and  facts  found  to  be  issued,  if  court  sat- 

isfied   upon    proof 523 

734.  Certificates — Together  with  evidence  must  be  filed 524 

735.  Will  duly  proved  and  allowed  in  any  foreign  country  or  state 

may    be    recorded,    when 524 

736.  Copy  of  will  duly  authenticated  produced  by  executor  must  be 

filed — Petition  hearing 524 

737.  Must  be  admitted  to  probate,  when,  and  letters  testamentary 

issued     524 

738.  Within  one  year  after  probate  any  person  interested  may  con- 

test same — Petition — Material  facts  to  be  shown 525 

739.  Executors  or  administrators  and  all  legatees  and  devisees  must 

be   cited 526 

740.  If  will  offered  by  petition,  it  must  show  all  required  in  original 

case     526 

741.  After  service  of  citations,  court  must  proceed  to  try  the  issues 

— Judgment 526 

742.  Revocation  being  made,  powers  of  executors  cease — Acts  done 

in  good  faith,  executor  not  liable 527 

743.  Fees  and  expenses  paid  by  contesting  party  or  by  party  resist- 

ing   revocation 527 

744.  Probate  conclusive  after  one  year 527 

— Filed  and  recorded — Letters  issued 528 

746.  Lost  or  destroyed  will  must  have  been  in  existence  at  death 

of    testator 528 

747.  Lost  will  established — Provisions  distinctly  stated  and  certified 

— Filed  and   recorded — Letters   issued 528 

748.  Pending  application  to  prove  lost  or  destroyed  will,  court  may 

restrain    administrators 529 

749.  Nuncupative  wills  may  within   six  months  be  probated — Peti- 

tion— Testamentary    words 529 

750.  Court  must  not  entertain  petition  until  lapse  of  fifteen  days — 

Interested    parties   notified 529 

751.  Contest  of  probate  of  nuncupative  wills — How  gonducted 530 

752.  Court  admitting  will  to  probate  must  issue  letters 530 

753.  Persons  competent  to  serve  as  executor 530 

754.  Who  may  file  objections  to  granting  letters  testamentary 530 

755.  No  executor  of  an  executor  authorized  to  administer  on  estate 

of  first  testator 531 

756.  Qualified  executor  may  act  during  minority  or  absence  of  an- 

other  executor 53I 


CONTENTS.  XXXI 

SECTION  PAGE 

757.  When  all  executors  named  are  not  appointed,  those  appointed 

may  act — When  coexecutor  may  act  for  all 531 

758.  Administrators    with    will    annexed    have    sanic    authority    as 

executors   532 

759.  Form  of  letters 532 

760.  Letters  of  administration  with  will  annexed — Form  of 533 

761.  Letters  must  be  signed  by  judge  under  seal 533 

762.  Form  for  will  leaving  estate  to  wife 533 

763.  Another  form  for  will  leaving  estate  to  wife,  also  giving  execu- 

trix power  of  sale  and  compromise 534 

764.  Another  form  for  will  making  specific  bequests  with  devise  to 

widow  for  life  or  during  widowhood,  with  residuary  clause  536 

765.  Form  for  a  provision  in  a  will  in  trust  for  wife  during  life, 

with  remainder  to  children,  advancements  to  be  deducted.  537 

766.  Form  for  provision  in  a  will  giving  power  to  trustee  to  con- 

tinue   business 538 

767.  Form  for  devise  of  real  estate  to  wife  for  life,  with  remainder 

to  brothers  and  sisters .  538 

768.  Form  for  devise  to  wife  for  life,  with  remainder  to  children .  .  .  539 

769.  Skeleton  form  for  codicil  to  last  will  and  testament 539 

770.  The  procedure  by  which  a  last  will  and  testament  is  admitted 

to  probate — The  form  for  the  petition  for  probate  of  a  will  540 

771.  Form  for  order  of  hearing  petition  for  probate  of  a  will 541 

772.  Form  for  notice  of  hearing  of  probate  of  will 541 

773.  Form  for  proof  of  posting  and  mailing  the  foregoing  notice.  .  .  542 

774.  Form  for  written  testimony  of  subscribing  witness  to  last  will 

and    testament 542 

775.  Form  for  protest  of  heirs  against  allowing  probate  of  last  will 

and    testament 543 

776.  Form  for  order  appointing  guardian  ad  litem  for  infant  heirs  545 

777.  Form  for  the    protest   of   guardian   ad   litem    of   minor   heirs 

against  the  probate  of  the  alleged  last  will  and  testament.  .  546 

778.  Form  for  the  answer  of  proponents  to  protestants  to  said  will  547 

779.  Form  for  order  of  court  admitting  will  to  probate 548 

780.  Form  for  order  of  court  refusing  to  probate  Inst  will  and  testa- 

ment     550 

781.  The  procedure  by  which  a  will  is  contested  after  the  same  has 

been  admitted  to  probate — The  petition  in  such  case 551 

782.  Form  for  praecipe  for  summons  in  such  action 553 

783.  Form  for  agreement    by    parties    to    have    cause    referred    to 

special  judge  for  the  determination  of  the  question  as  to 

the  setting  aside  of  the  will  in  controversy 554 

784.  Form  for  official  oath  of  special  judge 555 

785.  Form  for  citation  for  executors  to  appear  and  answer  petition  555 

786.  Form  for  sheriff's  return  of  his  service  of  said  citation 556 

787.  Form  for  answer  to  the  petition 556 

788.  Form  for  reply  to  answer 558 


Xxxiv  CONTENTS. 

SECTION  PAGE 

'&60.     The  order  for  hearing  the  petition  to  sell  ward's  real  estate.  .  .  .  608 
&61.     Form  for   the  waiver  of   the   statutory  notice  and  consent  to 

immediate    hearing 609 

862.  Form  for  the  proof  of  posting  the  notices 609 

863.  The  form  for  the  order  of   sale  of   ward's   real   estate  where 

parties  waive  the  notice — Guardian  appointed  in  one  county 

and  real  estate  situated  in  another 610 

864.  Form  for  legal  notice  for  posting 611 

865.  Form  for  proof  of  posting  legal  notice 612 

8i66.     Form  for  legal   notice   and   the   proof   of   publication  of   same 

in  county  where  land  is  located 612 

867.  Form   for   legal  notice   and   proof   of   publication   of   same   in 

county  where  guardian  resides  and  was  appointed 613 

868.  Form  for  report  of  the  sale  by  gunrdian 614 

869.  Form  for  the  order  for  the  hearing  of  the  guardian's  report 

and  return  of  sale  of  real  estate 616 

870.  Form  for  the  notice  of  hearing  return  of  the  sale  and  proof  of 

posting  the  same 616 

S71.     Form  for  offer  of  more  than  ten  per  cent,  of  the  amount  bid 

at  guardian's  sale  of  ward's  real  estate 617 

872.  Form  for  order  confirming  sale  of  real  estate  to  party  bidding 

ten  per  cent,  more  than  the  bid  at  public  auction 618 

873.  Form  for  the  deed  from  the  guardian  to  the  purchaser 619 

874.  Procedure  by  which  guardian  is  authorized  to  loan  funds  of 

ward — The   petition   therefor 621 

875.  The  form  for  order  of  loan — The  appointment  of  appraisers. .  . .  622 

876.  The  form  for  the  oath  of  the  appraisers 623 

877.  The  form  for  the  report  of  the  appraisers 623 

878.  The  form  for  opinion  of  attorneys  as  to  title 624 

879.  The  form  for  the  mortgage  to  guardian 624 

880.  The  form  for  the  report  of  guardian  as  to  loan 626 

681.     The  form  for  the  order  approving  and  confirming  loan 627 

882.  Set  of  forms  for  tlie  appointment  of  a  guardian,  and  for  the 

sale  of  real  estate  by  guardian — The  form  for  selection  of 

guardian  by  a  minor  over  years  of  age 628 

883.  Form  or  the  petition  for  the  appointment  of  guardian 628 

884.  Form  for  the  oath  to   the  petition 629 

885.  Form  for  the  order  appointing  guardian 630 

886.  Form  for  the  letters   of   guardianship 630 

887.  Form  for  the  oath  of  guardian 631 

888.  Form  for  the  guardian's    bond 631 

889.  Form  for  the  oath   of  sureties 632 

890.  Form  for  the  inventory  and  appraisement.*. 632 

691.     Form  for  the  oath  of  guardian  to  inventory  and  appraisement  633 

892.  Form  for  the  order  appointing  appraisers 634 

893.  Form  for  certificate  of  true  copy 634 

894.  Form  for  the  oath  of  appraisers 634 


CONTENTS.  XXXV 

SECTION  PAGE 

895.     Form  for  the  certificate  of  appraisers 635 

89G.     Form  for  the  bill  of  appraisers 635 

897.  Form  for  the  oath  of  appraisers  to  said  bill 635 

898.  Form  for  petition  to  sell  real  estate  by  guardian 636 

899.  Form  for  oath  to  petition 637 

900.  Form  for  order    for    hearing    petition    to    sell   real    estate   by 

guardian    637 

901.  Form  for  waiver  of  notice  of  hearing  petition  by  next  of  kin 

and  persons  interested 638 

902.  Form  for  affidavit  of  posting  copies  and  mailing  copies  to  next 

of  kin 638 

904.     Form  for  the  affidavit   of    publication 639 

90'5.     Form  for  the  order   appointing   appraisers 640 

907.  Form  for  the  decree  of  sale  of  real  estate  by  guardian 642 

908.  Form  for  notice  of  sale  of  real  estate 643 

909.  Form  for  the  affidavit  of  posting  notice. 644 

910.  Form  for  the  notice  of  sale  of  real  estate  by  guardian 644 

911.  Form  for  affidavit    of   posting   notices 645 

912.  Form  for  publication  of  notice  of  sale  of  real  estate 645 

913.  Form  for  the  proof    of   legal    notice 646 

914.  Form  for  the  legal  notice  of  sale  of  real  estate  by  guardian.  .  647 

915.  Form  for  the  proof   of   publication 647 

916.  Form  for  the  additional  bond  of  guardian 648 

917.  Form  for  the  oath  of  sureties 649 

918.  Form  for  the  return  of  sale  of  real  estate 649 

919.  Form  for  oath  of  guardian  to  return "650 

920.  Form  for  order  for  hearing  return  of  sale  of  real  estate 651 

921.  Form  for  the  notice  of  hearing  return  of  sale  of  real  estate.  .  .  651 

922.  Form  for  affidavit  of  posting  notices  of  hearing  return 652 

923.  Form  for  the  order  confirming  sale  of  real  estate  by  guardian .  652 

CHAPTER    XV. 

Homestead  axd  Exemption  Laws. 

924.  Distinction    between    general    homestead    and    homestead    for 

Indian  and  freedman 654 

925.  Homestead  in  forty  acres  for  the  Indian  and  freedman 655 

926.  The  homestead  law  a  constitutional  provision 657 

927.  What  property  exempt  from  attachment  or  execution 658 

928.  Homestead  shall  consist  of  what;   may  be  mortgaged 659 

929.  Abandonment — Waiver — Forfeiture    660 

930.  Deed,  mortgage  or  contract  relating  to  homestead  must  be  in 

writing,  and  both  husband  and  wife  must  join ©BO 

931.  When   husband  or  wife  may  execute  instrument  without  the 

other    joining 661 

932.  Husband  or  wife  executing  instrument  on  homestead  alone,  can 

be  avoided  only  by  the  party  not  joining 662 


XXXVi  CONTENTS. 

SECTION  PAGE 

933.  Husband   and   wife   must   join   in  same  instrument   to   convey 

homestead    662 

934.  Property  of  decedent  to  be   delivered  to  family  at  once;   the 

homestead    663 

935.  Additional  allotment  to  widow  and  children 663 

936.  Selection  of  the  homestead 664 

937.  Homestead   exempt   from  debt  or   liability 664 

938.  Property  belonging  to  single  person  exempt,  when 664 

939.  Homestead  exemptions  shall  not  apply,  when 664 

940.  Personal  property  not  exempt,  when 665 

941.  Pension  money  exempt,  when 665 

942.  Adult  heir  cannot  partition  homestead  occupied  by  wife  and 

family     665 

943.  Procedure  to  sell  homestead  of  insane  husband  or  wife 665 

944.  Petition  in  such  case 665 

945.  Notice  to  be  served,  and  upon  whom 666 

946.  Order  of  court  authorizing  sale 666 

947.  Form  for  petition  for  sale  of  homestead  of  insane  husband  or 

wife     666 

948.  Form  for  order  for  hearing  petition 667 

949.  Form  for  notice  to  be  served  on  nearest  male  relative  in  state  668 

950.  Form  for  proof  of  service  of  notice 66S 

951.  Form  for  order  authorizing  sale  of  homestead  of  insane  hus- 

band      669 

952.  Form  for  deed  in  such  case 670 

CHAPTER    XVI. 

Landlord  and  Tenant. 

953.  Preliminary    statement 673 

954.  Tenant    defined 673 

955.  Tenant  from  year  to  year — Month  to  month 674 

956.  To  hold  from  one  period  to  another,  when 675 

957.  Notice  to  terminate  tenancy 675 

958.  Tenancy  from  year  to  year — How  terminated 676 

959.  Notice  to  terminate  farm  tenancy 676 

960.  Rent  not  paid — Notice  to  quit — Ten  days 677 

961.  Rent  not  paid — Notice  to  quit — Five  days 677 

962.  Notice  not  necessary,  when 677 

963.  Notice,  how  served 677 

964.  Tenant  not  to  assign  interest,  when 678 

965.  Landlord   may  enter,   when v 678 

966.  Convfyance  by  landlord — Payment  of  rent 678 

967.  Attornment  void,  when 678 

968.  Sublessees     679 

969.  Alienees  of  lessors  and  lessees 679 

970.  Rent  from  life  grants — How  recovered 679 


CONTENTS.  XXXVll 


PAGE 


SECTION 

071.     Arrears  at  death — May  be  recovered 679 

972.  Executors  and  administrators  may  recover  rents 679 

973.  Occupants  liable 679 

974.  Joint    tenants 680 

975.  Joint  tenant  may  recover  against  his  cotenant 680 

976.  Estate  in  remainder  or  reversion 680 

977.  Rent  for  farm  land — Lien  on  crop 680 

978.  Share  of  crop  as  rent — ^Lessor's  rights  in 681 

979.  Purchaser  for  crop  liable  for  rent,  when 681 

980.  Landlord  may  attach,  when 682 

'981.     Attachment  to  enforce  lien  on  crop,  when eS* 

982.  Courts — Jurisdiction    of 684 

983.  Improvements,   taxes  on 684 

984.  Lease  must  be  in  writing 685 

985.  When  husband  or  wife  may  lease  homestead 685 

986.  Lease  valid  as  against  third  persons  only  when  recorded 685 

987.  Notice — Classes — Actual — ^Constructive — Presumptions   of   con- 

structive  notice 686 

988.  Lease  allowed  to  record,  when 686 

989.  Lease  received  in  evidence,  when 686 

990.  Eequirement  as  to  writing  or  printing  of  lease 687 

991.  Tenant  estopped  from  denying  landlord's  title 687 

992.  Form  for  farm  lease 687 

993.  Form  for  lease  of  furnished  house 6'88 

994.  Form  for  lease  for  apartment 691 

995.  Form  for  lease  of  storeroom  with  chattel  mortgage  clause ....  694 

996.  Form  for  assignment  of  lease  indorsed  on  lease 698 

•997.     Form  for  ninety-nine-year  lease,  renewable  forever 699 

998.  Form  for  petition  by  landlord  to  recover  lien  on  crop  sold  by 

tenant  to  purchaser  with  notice 705 

999.  Form  for  petition  replevying  landlord's  share  of  crop 706 

1000.  Form  for  affidavit  of  replevin  in  such  case 707 

1001.  Form  for  replevin   bond 707 

1002.  Form  for  Avrit  of  replevin 708 

1003.  Form  for  affidavit  in  attachment  for  rent  on  farm  land 709 

1004.  Form  for  order  of  attachment  for  rent  on  farm  land 710 

1005.  Form  for  notice  to  tenant  to  quit  premises 711 

1006.  Form  for  notice  to  quit  after  rent  due 711 

1007.  Form  for  notice  to  quit  tenancy  on  farm 711 

1008.  Form  for  affidavit  of  service  of  notice  to  quit 712 

CHAPTER    XVII. 

The  Law  and  Procedube  by  Which  Real  Estate  is  Sold  by  Fobeclostjee 
OF  Mechanic's  Lien. 

1009.  The  origin  and  natiire  of  the  law 714 

1010.  The  right  to  assert  the  lien  may  be  waived,  how 715 


Xl  CONTENTS. 

SECTION  PAGE 

1077.  Innocent  purchaser  protected 766 

1078.  Such  instrument  deemed  an  assignment 767 

1079.  Benefits  of  mortgage  accrue  to  mortgagee 767 

1080.  Mortgage  follows  property,  when 767 

1081.  Xo  mortgage  received  for  record  until  acknowledged 767 

1082.  Duty  of  register  of  deeds  when  mortgage  is  presented  for  record  768 

1083.  Mistake  of  register  of  deeds  does  not  lose  priority  for  the  in- 

strument      768 

1084.  Mortgage  void  for  want  of  consideration,  when 768 

1085.  Assignment  of  non-negotiable  note  secured  by  mortgage,  effect- 

ive of 769 

1086.  Statutory  form  for  mortgage 769 

1087.  Another  statutory  form  for  mortgage 770 

1088.  What  is  a  good  and  valid  mortgage — Waiver  of  appraisement.  .  770 

1089.  The  manner  of  the  discharge  of  a  mortgage 770 

1090.  Discharge  noted  by  recording  officer,  when 771 

1091.  Certificate  of  discharge  recorded  how 771 

1092.  Mortgagee  to  make  certificate  of  discharge,  when 771 

1093.  Xote  and  mortgage  construed  together 772 

1094.  Form  for  petition  for  foreclosure  of  mortgage  where  third  party 

assumes  the  mortgage  and  agrees  to  pay  it 773 

1095.  Form  for  petition  for  foreclosure  of  a  mortgage  where  succes- 

sive grantees  have  assumed  and  agreed  to  pay  it 775 

1096.  Form  for  petition  seeking  to  reform  a  mortgage  and  foreclose 

the  same,  marshaling  the  liens 778 

1097.  Form  for  petition  in  an  action  to  declare  a  deed  a  mortgage 

and  foreclosing  the  same 780 

1098.  The  procedure  by  whicli  a  mortgage  is  foreclosed — The  form  for 

the  petition  in  foreclosing  a  building  and  loan  mortgage.  .  .  782 

1099.  Application  for  the  appointment  of  a  receiver 787 

1100.  The  order  appointing  receiver 788 

1 101.  Affidavit  for  service  by  publication 789 

1 102.  Kotice  by  publication 790 

1103.  The  proof  of  service  by  publication 790 

1104.  Decree  of  foreclosure 791 

1105.  The  order  of  sale  directed  from  the  clerk  to  the  sherifi" 793 

1106.  The  legal  notice  of  the  sale  by  the  sheriff  under  the  decree  of 

foreclosure 795 

1107.  The  proof  of  publication  of  notice  of  sale 796 

1108.  'Confirmation  of  sale '. 796 

1109.  Sheriff's  return  of  his  proceedings  under  the  writ 797 

1110.  Sheriff's  deed  to  the  purchaser 798 


CONTENTS.  Xli 

CHAPTER    XIX. 

REAL  ACT!  OXS— STATUTORY. 

1.  Ejectment. 

2.  Occupying  Claimant's  Law. 

3.  Quiet  Title. 

4.  Paetition. 

a.  In  District  Coukt. 

b.  In  County  Court. 

5.  Evidence  in  Real  Actions. 

1.     Ejectment — The  Modern  Action  to  Recover  Possession  of 

Real  Estate. 

section  page 

1111.  The  nature  of  the  old  action  of  ejectment 802 

1112.  Intances  where  ejectment  a  proper  action 804 

1113.  Plaintiff  may  recover  where  shown  to  be  entitled  to  only  a  part 

of  the  land  in  controversy 807 

1114.  Ejectment  for  breach  of  condition  in  deed 807 

1115.  Ejectment  will  not  lie  to  recover  under  oil  and  gas  mining  lease 

where  lands  undeveloped 808 

1116.  Plaintiff  must  recover  on  the  strength  of  his  own  title 809 

1117.  Possessory  title  will  prevail,  when 810 

1118.  The  action  may  be  an  equitable  action  as  well  as  legal 811 

1119.  The  action  to  determine  adverse  interests  in  real  estate — ^The 

action  by  one  not  in  possession 811 

1120.  Ejectment — Rents   and    profits   and   partition   may   be   united 

in  one  action 811 

1121.  A  joint  tenant  out  of  possession  may  not  have  partition  with- 

out joining  a  cause  of  action  for  possession 813 

1122.  Actions  against  executors  or  administrators 813 

1123.  Limitations  of  actions  to  recover  real  estate  sold  by  an  execu- 

tor   or   administrator 813 

1124.  Actions  by  or  against  executors  for  the  recovery  of  real  estate     814 

1125.  Duties  of  executor  or  administrator  as  to  taking  possession  of 

real    estate 814 

1126.  The  allegations  of  the  petition  in  ejectment 814 

1127.  The    allegation    of    the    answer    in    ejectment — Possession    ad- 

mitted,   wlien 816 

1128.  The  allegations  of  the  answer  of  a  cotenant 817 

1129.  Recovery  of  rents  and  profits  by  cotenant 818 

1130.  The  general  denial  and  what  may  be  proved  thereunder 818 

1131.  Possession  in  ejectment  may  be   awarded  the  defendant  who 

pleads  by  cross-petition 820 

1132.  Judgment  on    disclaimer   of  defendant 820 

1133.  Xeither  party  may  contest  prior  deed,  when 821 

1134.  Where    title   is    derived    under    special    law,    such    special    law 

must  be   alleged  and   proved 821 


Xlii  CONTENTS. 

SECTION  PAGE 

1135.  When  the  words  of  an  instrument  operate  as   a   covenant  or 

mere  words   of  description 821 

1136.  Action   by  an   occupant  of  a   town   lot  before   legal   title  has 

passed   from  the  government 822 

1137.  When  the  defendant  may  not  deny  that  his  grantor  had  title.  822 

1138.  The  statute  of  limitations  in  actions  concerning  real  estate.  .  . .  823 

1139.  Legal  disability  as  to  real  property 824 

1140.  New  action  may  be  brought  after  reversal,  when 824 

1141.  .  A  right  barred  by  limitation  may  neither  be  made  a  cause  of 

action  nor   a   defense 824 

1142.  Proof  necessary  to  show  adverse  possession   in  ejectment.  .  .  .  824 

1143.  The  burden  of  proof 824 

1144.  Verdict  where  right  of  action  changes  pending  suit 826 

1145.  One  trial   only  in   ejectment 826 

1146.  Restitution  by  sheriff — Crops  belong  to  what  party 827 

1147.  Judgment  in  ejectment  final  and  prevents  reassertion  of  title 

— Res    adjudicata 827 

1148.  Costs  for  plaintiff  on  recovery  in  ejectment 828 

1149.  Effect  of  conveyances  in  violation  of  statute  against  champerty  828 

1150.  Procedure    in   ejectment   where   trial    by   jury   is   waived   and 

the  cause  submitted  to  the  court   sitting  as  a  jury — The 

form  for  the  petition 829 

1151.  Form   for    answer 830 

1152.  Motion  for  a  new  trial 831 

1153.  Form  for  the  judgment  of  the  court  and  the  order  overruling 

motion  for  new  trial 831 

1154.  The  procedure  by  which  the  possession  of  real  estate  is  recov- 

ered— The  form  for  the  petition  when  damages  are  asked.  832 

1155.  The  answer  containing  a  general  denial 834 

1156.  The  journal  entry  of  the  action  of  the  jury 834 

1157.  Instructions  to  the  jury 835 

1 158.  Motion  for  new  trial 836 

1159.  Judgment  sustaining  motion  for  new  trial 836 

1160.  Form  for  judgment  for   plaintiff   on   the   verdict 837 

1161.  Form  for  judgment  on   verdict   for   defendant 838 

1162.  The  writ  of  possession  or  habere  facias  possessionem 838 

2.     The  Occupying  Claimant's  Law. 

1163.  Preliminary  statement    840 

1164.  In    what   cases   the   occupying    claimant   may    not   be   evicted 

until   improvements   are  paid  for 841 

1165.  Occupant  must  have  "color  of  title" — Definition  of  term 842 

1166.  Instances  where  occupant  not  allowed  for  improvements 844 

1167.  Improvements  for  which  the  occupant  may  be  paid 845 

1168.  The  riglit  to  set  off  rents  against  the  value  of  improvements  845 

1169.  Tax  title  which  will  support  the  claim  for  improvements....  846 

1170.  Construction  of  the  occupying  claimant  statutes 847 


CONTENTS.  Xliii 

SECTION  PAGE 

1171.  Occupying    claimant's    law — Specific    findings    of    the    court — 

Three  disinterested  freeholders,  appraisement — Jury  im- 
paneled,   when 847 

1172.  Judgment  for  value  of  improvements — Execution  thereon....  849 

1173.  Value  between  rents  and  improvements  before  writ  of  ouster 

issue — Appeal   849 

1174.  Writ  of  possession,  when — Issued  in  favor  of  successful  claim- 

ant      850 

1175.  Land  sold  by  executor,  administrator  or  guardian — Sheriff  or 

commissioner — Recorded — Plaintiff  not  entitled  to  posses- 
sion,   when 851 

1175a.  Special   instance   where   improvement   allowed  under   void  tax 

deed    851 

1175b.  Improvements — Indian  lands 852 

3.     The  Procedube  by  Which  Title  to  Real  Estate  is  Quieted. 

1176.  The  statutory  action  to  quiet  title 854 

1177.  The  equitable  action  to  quiet  title 855 

1178.  The  nature  of  the  action 856 

1179.  Sufficiency  of  the  allegations  of  the  petition  to  quiet  title 860 

1180.  Answers  and  cross-petitions  in  the  action 861 

1181.  A  person  having  no  interest  in  real  estate  cannot  maintain  the 

action  to  quiet  title  thereto 861 

1182.  Awarding  costs  when  disclaimer  is  filed  by  a  defendant 861 

1183.  The  nature  and  effect  of  a  decree  quieting  title 862 

1184.  Injunction  against  defendants  may  be  demanded,  when 862 

1185.  The  ordinary  form  for  the  petition  to  quiet  title 8fi2 

1186.  Form  for  the  petition  to  quiet  title  to  land  devised  to  descend 

to  brothers,  etc.,  in  case  of  death  without  heirs 863 

1187.  Form  for  the  petition  in  an  action  to  quiet  title  and  to  enjoin 

judicial    sale 864 

1188.  Form  for  the  answer  in  action  to  quiet  title  of  adverse  posses- 

sion for  more  than  years 865 

1189.  Form  for  the  judgment  and  decree  of  the  court  in  the  action 

to   quiet    title 866 

1100.     Procedure  by  which  title  to  real  estate  is  quieted — The  form 

for  the  petition 867 

1191.     Form  for  praecipe  for  summons 871 

II S2.     Form  for  the    summons 872 

1193.  Form  for  waiver  of  summons  and  entry  of  appearance 873 

1194.  Form  for  motion   for   appointment   of  guardian   ad  litem   for 

minor  defendants 875 

1195.  Order  appointing  guardian  ad  litem  for  minor  defendants 875 

1196.  The  answer  of  the  guardian  ad  litem 876 

1197.  The  decree  of  the  court  quieting  title '877 


Xliv  CONTENTS. 

4.     The  Action  by  Which   Real  Estate  is  Partitioned. 

a.    In  the  District  Court. 

section  page 

1198.  Nature  of  the  proceeding — Equitable  and»  statutory 880 

1199.  One   tenant    cannot    ell'ect    partition    by    deed,    conveying    his 

interest  by  metes  and  bounds 882 

J200.     Will    may   be    construed — Course    of   descent    and    legality   of 

bequest  determined  by  partition 882 

1201.  Partition  creates  no  new  titles 882 

1202.  Construction  of  partition   by  mutual   releases 883 

t203.     Remainderman    or     reversioner    cannot    have    partition — The 

exception  to  this   rule 884 

120ki.     Heirs  may  not  have  partition  of  homestead  occupied  by  wife 

and    family 885 

1205.  The  real  estate  must  be  described  in  the  petition  to  partition.  886 

1206.  The  power  of  a  general  guardian  in  partition  cases 886 

1207.  Allegation  as  to  unknown  owners — 'Creditors  as  parties 886 

1208.  The  allegations  of  the  answer 887 

1209.  The  allegations  of  the  petition  where  the  executor  or  admin- 

istrator has  charge  of  the  estate 887 

1210.  Tlie  causes  of  action  that  may  be  joined  with  partition 887 

1211.  Sale  in  partition  where  real  estate  is  encumbered  by  lien....  887 

1212.  Heirs   not   divested   by   foreclosure   proceedings,   when 8'8'8 

1213.  Trustees  under  a  will  may  partition,  when 888 

1214.  The    order    of    partition 888 

1215.  The  commissioners   in  partition 889 

1216.  The  fees    of    commissioners 889 

1217.  The  duty  of  commissioners,  as  to  allotment  of  special  tracts  of 

land     889 

1218.  The  oath   of   the   commissioners 889 

1219.  The  report  of  the  commissioners  in  partition 889 

1220.  The  report  may  be  .set  aside,  when 800 

1221.  Judgment  upon  the  report  of  the  commissioners 890 

1222.  Party  may  elect  to  take  at  appraisement,  when 890 

1223.  The  property  to  be  sold,  when 890 

1224.  The  sheriff's  return  and  deed 891 

1225.  Apportionment  of  attorneys'  fees  and  taxing  costs 891 

1226.  The  powers  of  the  court  in  partition 89il 

1227.  The  doctrine  of  lis  pendens  as  applied  to  partition  suits 892 

1228.  Form  for  petition  by  guardian  for  partition 892 

1229.  Form  for  petition  for  equitable  partition  wlien  advancements 

have    been    made 894 

1230.  Form  for  petition  where  an  account  for'  rents  and   profits  is 

asked     896 

1231.  The    proceeding    by    which    real    estate    is    j)artitioncd    by    the 

court — The  ordinary  form  for  partition 8'97 

1232.  Form  for  answer  of  defendant  disclaiming  any  interest  in  the 

real    estate 899 

1233.  Form  for  answer   in   partition 89Q 


CONTENTS.  Xlv 
SECTION                                                                                                                                                             PAGE 

1234.  Form  for  decree  for  partition 900 

1235.  The  writ  of  partition  directed  to  the  sheriff  by  the  clerk 901 

1236.  The  oath   of  the  commissioners 902 

1237.  The  commissioners'  report  of  their  proceedings 903 

1238.  The  sheriff's  return  of  his  proceedings 904 

1239.  'Confirmation    of    commissioners'    report 904- 

1240.  The    sheriffs    deed 905 

1241.  Commissioners'   report   when   tlie   property  cannot   be   divided 

and  must  be  sold 906 

1242.  Sheriff's    return 907 

1243.  Election  by  one  of  tlie  parties  to  take  real  estate  at  the  ap- 

praisement       907 

1244.  Entry    confirming    sale,    order    of    deed    and    distribution    of 

funds    908 

1245.  Entry  confirming  report  of  appraisement  and  ordering  sale  of 

real    estate Q09 

1246.  The  order  of  sale  from  the  clerk  to  the  sheriff 910 

1247.  Legal  notice  of  sale 911 

1248.  Proof   of  publication 911 

1249.  Sheriff's    return 912 

1250.  Confirmation  of  sale,  order  for  distribution  and  deed 912 

4.  Partition. 
b.  In  the  County  Court. 

1251.  The    partition    may    be    made,    when — The    commissioners    in 

partition — Their    oath    and    duties 914 

1252.  The  petition  for  partition  and  the  notice  required 915 

1253.  The  partition  when  the  real  estate  is  in  different  counties.  .  .  .  916 

1254.  Partition  may  be  made  when  heirs  of  devisees  may  have  con- 

veyed      91,6 

1255.  Both  partition  and  distribution — Metes  and  bounds 916 

1256.  The  rule  when  estate  cannot  be  divided — ^Owelty  in  partition 

— Males    preferred    to    females — Duties    of    commissioners 

when  estate  cannot  be  divided 917 

1257.  The  whole  tract  may  be  assigned  to  whom — The  payment  by 

the  others 918 

1258.  The  real  estate  to  be  sold — Manner  of  sale 918 

1259.  The     notice     required — Commissioners     may     take     evidence — 

Duties    of 918 

1260.  The   report   of    the   commissioners — Other    commissioners    may 

be  appointed,  when — The  decree  to  be  recorded  and  where.  919 

1261.  Commissioners  need   not  be   appointed,  when 919 

1262.  The  court  has  power  to  hear   and   determine  questions  of  ad- 

vancements      919 

1263.  Form  for  petition  for  partition,  county  court 920 

1264.  Order  for  hearing  petition  for  partition 921 

1265.  The  notice  for  the  hearing  of  the  petition 922 


xlviii  CONTENTS. 

SECTION  PAGE 

1323.  'Conditional  limitations 963 

1324.  Limitations  to  heirs  of  the  body 963 

1325.  On  death  of  first  taker 903 

1326.  Unexecuted    power 964 

1327.  Termination  of  estate   at  will 964 

1328.  Notice  must  be  in  writing,  etc 964 

1329.  Action   after   notice 964 

1330.  Three  days'  notice 965 

1331.  Action  without  three  days'  notice 965 

1332.  Easements  attached  to  land 965 

1333.  Easements  not  attached  to  land 966 

1334.  Dominant  tenement 966 

1335.  Who  can  create  a  servitude 966 

1336.  Who  cannot  hold  a  servitude 967 

1337.  Extent  of  servitude 967 

1338.  Partition  of  servitude 967 

1339.  Right  of  future  owner 967 

1340.  Action  to  enforce  easement 967 

1341.  Action  for  possession 968 

1342.  Servitude,   how  extinguished 968 

3.     Rights  and  Obligations  of  Ownebs  of  Real  Propebty. 

1343.  Land   includes  water 969 

1344.  Above  and  below  surface 969 

1345.  Banks  and  beds  of  streams 970 

1346.  Highways    970 

1347.  Lateral    support 970 

1348.  Trees  on   land 970 

1349.  Trees  on  line 971 

1350.  Repair  and  taxes 971 

1351.  Boundaries   and   fences 971 

13.52.     Limitations  to  those  specified 971 

1353.  Uses  held  under  former  statute 971 

1354.  Use    defined 972 

1355.  Estate  of  trustee  not  divested 972 

1356.  Transfers  must  be  made  by  record 972 

1.357.     Limitation  of  preceding  sections 972 

1358.  Requi.sit<-3  of  a  trust 973 

1359.  Trust    presumed,    when 073 

1.360.     Rights  of   innocent  purchaser 973 

1361.     Express  trusts — Created  for  what  purpose 973 

1.'}C2.     Power  in  trust , 974 

1363.  Surplus  liable  to  creditors 974 

1364.  Certain  trust  may  be  created 974 

1365.  Power  in  trust  may  be  created 975 

1 360.  Realty  passes,  how 975 

1367.  Estate  in  trust  limited 975 

1368.  Contingent    trust 975 


CONTENTS.  Xlix 

SECTION  PAGE 

1S69.  Legal    estate 9"5 

1370.  Undisposed    estates 976 

1371.  Limited    disposal '976 

1372.  Grant  separate  from   trust 976 

1373.  Act  of  trustee  void,  when 976 

1374.  Trust   ceases,    when 976 

4.     Powers  Concerning  Real  Property. 

1375.  Powers  limited  to  tliose  specified 977 

1376.  Power  of  attorney  excluded 978 

1377.  Power    defined 978 

1378.  Author  of   power   defined 978 

1379.  Powers    classified 978 

1380.  General  powers 978 

1381.  Special    powers 079 

1382.  Beneficial    powers     979 

1383.  Power  in  trust 979 

1384.  General  power  in  trust 979 

1385.  Special  power  in  trust — Capacity  to  create,  etc 979 

1386.  Power  may  be   reserved 980 

1387.  Power  irrevocable  unless  right  reserved 980 

1388.  Power  is  lien,  when 980 

1389.  Power   a  security 980 

1390.  Power  cannot  be  executed,  when 981 

1391.  Married  woman  may  execute  power 981 

13-92.  Married  woman  cannot  execute  power,  when 981 

1393.  Power,    how    executed 981 

1394.  Power  vested  in  several  persons 981 

1395.  Execution  by  will 982 

1396.  Execution  by  grant 982 

1397.  Instrument  insufficient  to  pass  estate,  when 982 

1398.  Observance  of  additional  formalities  unnecessary 982 

1399.  Nominal  condition  may  be  disregarded 982 

1400.  What  conditions  must  be  observed 983 

1401.  Consent  of  third  party  must  be  expressed 983 

1402.  Consent  of   survivors 983 

1403.  Validity  without  recital  by  power 983 

1404.  Instrument  to  be  deemed  conveyance 984 

1405.  Disposition  charge  valid  to  extent  of  power 984 

1406.  Time  runs  from  when 984 

1407.  Estate  can  be  given  only,  when 984 

1408.  Married  woman  may  create  estate 984 

1409.  Pvelief   from   defects 985 

1410.  Fraud— Efl['ect    of 985 

1411.  Power  given  to  married  woman 985 

1412.  Estates  changed   into  fee 985 

1413.  Same    986 

1414.  Same    986 


I  CONTENTS. 

SECTION  PAGE 

1415.  Same    ^^^ 

1416.  Power  deemed  absolute 986 

1417.  Reserved    power 986 

1418.  Beneficial  power  valid 98^ 

1419.  Power   to   lease 987 

1420.  Power  annexed  to  estate 987 

1421.  Extinguishing    grant 987 

1422.  Mortgage  binds  power 988 

1423.  Effect  of  mortgage 988 

1424.  Power  liable  to  claim  of  creditors 988 

1425.  Other  power  void 988 

1426.  Enforceable   power 988 

1427.  Power  does  not  cease  to  be  imperative,  when 988 

1428.  Equal   shares 989 

1429.  Discretionary  power 989 

1430.  Death  of  trustee 989 

1431.  Execution  devolves  on   district  court,  when 989 

1432.  Trust  for  benefit  of  creditors 989 

1433.  Curing  of  defects 990 

1434.  Certain    law    applies 990 

5.     The  Public  Lands. 

1435.  Alien  shall  not  acquire  title 992 

1436.  Land   already   owned 993 

1437.  Legal  holdings  for  five  years,  when 993 

1438.  Conveyances   by   alien 993 

1439.  County  attorney  or  attorney-general  to  institute  proceedings..  994 

1440.  Procedure  in  case  of  minor 995 

1441.  Procedure   on   judgment 995 

1442.  Leases    extended 996 

1443.  Appraisement  to  be  made 997 

1444.  Statistics  collected 997 

1445.  Certain  lands  to  be  sold 998 

1446.  Proceeds  of  sale  reserved  for  what  uses 999 

1447.  Limit  of  purchases — "New  college  lands" — Classification — Pref- 

erence of   lessees — List  of  purchasers   to  county   clerk  for 
taxation    purposes 1000 

1448.  Appraisement  basis  of  sale — Appeal  from  appraisement 1002 

1449.  Lien  of   state    for    purchase    price — 'Certificate   of   purchase   to 

be    delivered 1003 

1450.  Lessee  to  retain  possession — To  remove  crops,  etc 1003 

1451.  Ijcssce's  preference 1004 

1452.  Preliminary  payment  of   purchaser 1004 

1453.  Transfer  of  rights  by  purchaser — Procedure 1006 

1454.  Conditions  read  into  contract 1006 

1455.  Rale    regulations     1006 

1456.  Advertisement    1007 

1457.  Affidavit  of  purchaser  as  to  use  of  land 1007 


CONTENTS.  li 

SECTION  PAGE 

1458.  Reservation    from    sale 1008 

1459.  When  lands  to  be  sold 1009 

1460.  Rules  and  regulations 1009 

1461 .  Penalties   for  violation 1009 

1462.  Public  mineral  lands  reserved  from  sale 1010 

1463.  Public  lands  subject  to  exploration 1010 

1464.  Mining  claim — How   entered 1011 

1465.  Lode   mining  claim 1011 

146'6.     Placer    location 1011 

1467.  Preference  to  discoverer 1012 

1468.  Leases  for  mining  purposes 1012 

1469.  Application  for  recording  claim 1012 

1470.  Preference   of   claim  poster 1012 

1471.  Lode    location 1013 

1472.  Placer   location 1013 

1473.  Surface  right  of  location 1013 

1474.  Leases  let  by  bids 1013 

1475.  Applicant  to  pay  twenty-five  cents  an  acre 1013 

1476.  Royalty  discontinued,  when 1014 

1477.  Contract  prior  to  expiration  of  lease 1014 

1478.  Terms  of  royalty  fixed  by  commissioners 1014 

1479.  Claims  recorded — Where 1015 

1480.  Legalizing  local  rule 1015 

1481.  Vested  right  of  discovery 1015 

1482.  Inherent  rights 1015 

1483.  Land  containing  oil  or  gas 1015 

1484.  Leases  reserve  easement 1016 

1485.  Lease   for  prospecting 1016 

1486.  Commissioners  may  lease 1017 

1487.  Stipulations  of  lease 1018 

1488.  Liability  of   lessee 1018 

1489.  Disagreement  as  to  damages 1018 

1490.  Power  of  commissioners  to  enter  findings 1019 

1491.  Proceeds  from  leasing 1019 

1492.  All  public  lands  may  be  leased 1020 

1493.  Manner  of  leasing 1020 

1494.  School  lands — Lease,  term  of 1021 

1495.  Indemnity  land,  etc.,  term  of  lease 1021 

1496.  Application  for  lease — Conditions  of 1022 

1497.  Commissioners  may  advertise 1022 

1498.  Lessee   in   default — Forfeiture — Procedure 1023 

1499.  Assignment  of  lease  recorded  where 1024 

1500.  Appraisers — Compensation    1026 

1501.  Subdivision  and  lease  of  lands  adjoining  town — ^Procedure.  .  .  .    1025 

1502.  Waste    1026 

1503.  Termination  of  lease — Improvements  on,  etc 1026 

1504.  Appeal  from  appraisement 1027 

'1505.     Relinquishment  in  favor  of  new  lessee 1027 


lii  CONTENTS. 

SECTION  PAGE 

1506.     Commissioners   may   hear   contest 1028 

r507.     Oaths— Penalty  for  false 1029 

1508.  Records  of  land  office  piihlic — Evidence 1029 

1509.  Lessee  may  sublease — One  year — Application  to 1030 

1510.  Bonus  for  lease  may  be  accepted 1030 

1511.  Commissioners  may  make  rules 1030 

1512.  Certain  school  land  may  be  sold 1031 

1513.  Procedure  for  sale 1031 

1514.  Lessee  to  be  paid  for  improvements : 1031 

1515.  Proceeds  credited  to  school  funds 1031 

1516.  Funds   created 1032 

1517.  Warrants  against  funds 1032 

1518.  Sale   of  warrants 1033 

1519.  Deposit  by  bidders 1034 

1520.  Proceeds   of   sale — Construction   of   buildings 1034 

1521.  Estimate    by   board 1035 

1522.  Corporate  and  public  funds  may  be  invested  in  warrants....    1035 

1523.  Signing  and  registration  of  warrants 1036 

1524.  Payment  of  warrants 1036 

1525.  Former  warrants  to  be  redeemed  at  once 1036 

1526.  Lands   specified 1036 

1527.  Appropriation    made 1037 

1528.  "New  college  fund"  name  of  fund 1038 

1529.  Income,  interest,  etc.,  to  be  available 1038 

1530.  Lease  authorized 1038 

1531.  Land  to  be  appraised 1039 

1532.  Appeal  from  appraisers 1039 

1533.  Appropriation    made 1039 

1534.  Purchase  authorized 1039 

1535.  Commissioner  shall  cause  appraisement  to  be  made 1040 

1536.  Land  may  be  condemned 1040 

1537.  Leasing  in  charge  of  commissioners 1041 

1538.  Leasing  regulations 1041 

1539.  Date  of  new  leases 1042 

1540.  Application  blanks 1042 

1541.  Leasing  vacant  lands — Preference  rights 1042 

1542.  Default  of  rental — Notice — Forfeiture 1043 

1543.  Lease,  when  valid  as  mortgage 1044 

1544.  Penalty  for  waste 1044 

1545.  Improvements — When  removable 1044 

154G.     Appraisements,  how  appealed  from 1045 

1547.  Transfer  of   lease » 1045 

1548.  Contest  of  lease  assignment 1046 

1549.  Appeals  from  commissioners 1046 

1550.  Power  to  administer  oaths — False  swearing 1047 

1551.  Records  made  public 1048 

1552.  Subleases 1048 

1553.  Fees,  disposal  of 1048 


CONTENTS.  liii 

SECTION  PAGE 

1554.  Bonus,    receivable 1048 

1555.  Arbitration  of  leasing  terms 1049 

1556.  Rules  and  regulations 1050 

1557.  Salaries  and  bonds  of  employes 1050 

1558.  Salaries— How    paid 1053 

1559.  Traveling  expenses 1053 

15G0.     Terms  and  duties 1054 


CHAPTER    XXI. 

The  Sale  of  Real  Estate  by  a  Receiver. 

1(5'61.  Source  of  receiver's  authority  to  sell  real  estate 1055 

1562.  The   statutory  powers  of  a  receiver 1056 

1563.  The  statutory  instances  in  which  a  receiver  may  be  appointed.  1057 

1564.  Who  may  be  appointed  receiver 1058 

1565.  The  oath  and  bond  of  the  receiver 1058 

1566.  Funds  in  the  hands  of  a  receiver  may  be  invested 1058 

1567.  Disposition   of  property  admitted   to  pleadings  to  be   held   as 

trustee    1059 

1568.  Disobedience  of  order — ^Contempt 1059 

1569.  Appeal  from  order  appointing  or  refusing  to  appoint  receiver — 

The  bond 1059 

1570.  ]\Ibtion  to  vacate  in  cases  pending  in  the  Supreme  Court....    1060 

1571.  The  manner  in  which  a  receiver  is  appointed  and  the  procedure 

in  such  case 1061 

1572.  Procedure  by  which  real  estate  is  sold  by  a  receiver  of  the  court 

— The  petition  in  an  action  in  which  a  receiver  is  appointed  1062 
The  petition  in  an  action  in  which  a  receiver  is  appointed.    10'6i2 

1573.  Motion  asking  for  appointment  of  receiver 1065 

1574.  Notice  to  defendant  of   the  time  and  place  of  asking  for   the 

appointment  of  a  receiver 1065 

•1575.     Order  of  court  appointing  receiver 1066 

1576.  Order  of  court  appointing  counsel  to  advise  receiver 1067 

1577.  Motion  asking  court's  instructions  as  to  publication  of  notice 

to  creditors 1067 

1578.  Order  of  court  directing  the  manner  and  kind  of  notice  to  be 

pviblished  to   creditors 1068 

1579.  The  notice  published 1068 

1580.  Proof   of   publication 1069 

1581.  Inventory  filed  by  receiver 1069 

1582.  Application   for   appointment  of   appraisers    and   order  to   sell 

real  estate 1070 

1583.  The  receiver's  report  of  appraisement 1071 

1584.  Oath  of  appraisers  and  their  report 1071 

1585.  Application  for  confirmation  of  appraisement 1072 

1586.  The  confirmation  of  appraisement  and  order  of  sale 1073 

1587.  The  receiver's  report  of  sale  of  real  estate 1074 


liv  CONTENTS. 

SECTION  PAGE 

1588.  The  legal  notice  of  receiver's  sale 1075 

1589.  The  proof  of   publication 1076 

1590.  The  entry  confirming  the  sale  of  real  estate 1076 

1591.  ^Receiver's  deed  for  real  estate 1077 


CHAPTER    XXII. 

Restobation  of  Records  of  Title  to  Real  Estate  When  Lost  oe 

Destboyed. 

1592.  Mode  of  applying  or  restoring  by  certified  copy 1082 

1593.  Mode  of  supplying  when  no  copy  of  lost  record  exists 1082 

1594.  Restoration  of   probate  records  when   destroyed   by  fire — How 

made 1083 

1595.  Certified  copy  of  record  of  Supreme  Court  may  be  filed  in  in- 

ferior court 1084 

1596.  Destruction  of  records  of  register  of  deeds'  office  supplied  by  re- 

recording   original   papers 1085 

1597.  Restoration  of  records  of  register  of  deeds'  office  in  recording 

certified  papers  from  other   counties 1085 

1598.  Certified  copies  of  records  of  any  court  of  record  entitled  to 

be  recorded,  when 1086 

1599.  Loss  of  maps  or  plats — How  restored 1086 

1600.  Expenses,  how  paid 1088 

1601.  Restoration  of  county  records,  how  made 1088 

1602.  County  commissioners  to  procure  certified  copies  of  all   docu- 

ments pertaining  to  land  in  county — Same  to  be  recorded.  .    1089 

1603.  County   attorney — Duty    of — Copies    of    or    extracts   from    de- 

stroyed records,  purchase  of — Effect  of  such  records — Ab- 
stract of  title  prima  facie  correct 1089 

1604.  Custody    of   purchased    copies   of   records — Certified    copies    of 

such  documents  to  be  furnished  by  register  of  deeds — Docu- 
ments introduced  in  evidence  presumed  to  have  been  legally 
executed — Sales,  etc.,  presumed  to  be  regular — Exception — 
Person  pleading  irregularity  must  prove  same 1091 

1605.  Courts — Power  of  to  establish  title 1093 

1606.  Mode  for  establishing  title 1093 

1607.  Clerk  of  court  to  keep  records — Notice,   form  of — Publication 

of    notice 1904 

1608.  Petition  for  establishing  title — Interested  person  may  oppose.  .    1096 
1008a.  Time  in  which  petition  may  be  opposed — Form  of  procedure; 

referee  appointed ^ 109G 

1609.  Power  of  courts  to  determine  in  whom  title  i.s — Decree  not  to 

afi"ect  lien  on  land 1097 

1610.  Decree,  efi'ect  of — Decree  void,  when — Service  on  all  persons  in- 

terested         1097 

1611.  Destruction  of  records — Refiling  of  original  documents,  when — 

Certified  copy  of  original  document  entitled  to  record,  when  1098 


CONTENTS.  IV 

SECTION  PAGE 

1612.  Burden  of  proof  when  title  based  on  tax  deed — Duties  of  person 

relying  on  tax  deed  to  show  strict  compliance  with  law.  .  .  1099 

1613.  Executors,  etc.,  may  act  in  behalf  of  interest  represented 1099 

1614.  Special  commissioners — Appointment  of — Duties  of — Fees 1099 

1615.  "Person"  defined 1100 

1616.  Proceeding,  to  govern 1100 

1617.  Instruments  mutilated  inadmissible — Unlawful  to  alter  instru- 

ments— Forgery — Persons  furnishing  abstracts  or  writings 
concerning  lands  declared  to  be  common  carriers — Extor- 
tion— Punishment  for 1100 

1618.  Abstract  of  title,  press  copies  of  writings,  etc.,  admissible  in 

evidence    1 102 

1619.  The  procedure  by  which  lost  records  are  restored 1103 

1620.  Petition  to  restore  lost  records 1103 

1621.  Lost  petition  for  appointment  of  guardian 1104 

1622.  Lost  waiver  of  right  by  father 1105 

1623.  Lost  selection  of  guardian  by  ward 1106 

1624.  Lost  order  appointing  guardian 1 106 

1625.  Lost  letters  of  guardianship 1107 

1626.  The  order  by  which  lost  or  destroyed  records  are  restored 1108 


INDIAN  LAND  LAWS. 


CHAPTER   XXIII. 

Indian  Land  Laws — The  Curtis  Act,  ob  Act  fob  the  Pbotection  of 
THE  People  of  the  Indian  Tebbitoby — The  Atoka  Agbeement. 

section  page 

1627.     Definition    of   term    "officer"    in   suits    for    embezzlement    and 

embracery    1110 

162S.     Tribes  to  be  made  parties  to  civil  suits — Service  on  chief  or  gov- 
ernor      1110 

1629.  Land   suits   by   members  of  tribe — Occupying  claimants— Pro- 

ceedings as  to 1111 

1630.  Police  courts — jurisdiction 1113 

1631.  Statute  of  limitations  for   possession   of  lands — Act  not  con- 

flicting to  actions  of  forcible  entry  and  detainer 1114 

1632.  Allotment  of  lands — Mineral  lands  reserved — Church  and  school 

lands  reserved — Vested  rights  reserved — Allottee  entitled  to 
allotment  of  lands  in  his  possession — Town  sites  may  con- 
demn tribal  lands  for  public  piirposes,  when 1114 

1633.  Secretary  to  make  record  of  allotments — Confirmation  of  allot- 

ment to  give  undisturbed  possession 1116 


Ivi  CONTENTS. 

SECTION  PAGE 

1634.  Provisions   as   to  the  making   of  coal,   oil   and   other   mineral 

leases    1117 

1635.  Provisions  for  the  formation  of  towns  and  cities,  and  the  con- 

trol thereof — Sale  of  lots  in  towns  and  cities 1118 

1636.  Penalty  for  taking  royalty  for  coal  and  other  minerals — For 

taking  or  inclosing  lands  other  than  allotment 1123 

1637.  Payment    of    money   to    tribes — Employment    of    assistance   to 

enforce  provisions  of  this  act 1125 

1638.  Manner  of  making  a  roll  and  census  of  a  tribe — The  taking  of 

testimony  in  making  the  rolls 1125 

1639.  Improvements  made  by  members  of  one  tribe  on  lands  of  an- 

other— Disposition  of 1128 

1640.  Agricultural  and  grazing  leases 1129 

1641.  Money   under    this    act  to   be    paid    where — Segregated    lands 

purchased  by  the  Delawares  from  the  Cherokees — Suits  by 
Delawares  in  United  States  court  of  claims  against  Chero- 
kees under  agreement  of  April  eighth,  eighteen  hundred 
and    sixty-seven 1 129 

1642.  Laws  of  tribes  not  enforced  in  the  courts  of  the  United  States 

for    the    Indian    Territory — Indian     inspector — All    tribal 

courts    abolished 1130 

1643.  Submission  of  Atoka  agreement 1131 

1644.  Allotment  to   Choc  taws  and  Chickasaws 1133 

1645.  Members'  title  to  land 1136 

]  646.     Provisions  as  to  railroads    1137 

1647.  Provisions  as  to  town  sites 1137 

1648.  Mineral  leases  on  Choctaw  and  Chickasaw  lands 1141 

1649.  What  courts  have  jurisdiction  for  offenses  on  lands  occupied 

by    Choctaws   and   Chickasaws 1144 

1650.  Per  capita  payments  to  Choctaws  and  Chickasaws — Appropria- 

tion for  fulfilling  treaty  stipulations  with  Choctaws  and 
Chickasaws    1 147 

1651.  Court  decisions  to  be  basis  of  settlement  between  the  United 

States  and  the  Choctaws  and  Chickasaws  for  what  is 
known  as  "leased"  district — Disposition  of  Choctaw  orphan 
lands 1148 

CHAPTER    XXIV. 

Indian  Land  Laws — Tiik  Federal  La\v  Ratifying  and  Confirming  an 
Agreement  with  the  Creek  Tribe — The  Original  Creek  Agreement. 

1652.  Provisions  for  the  ratification  of  agreement— rDefmition  of  terms  1151 

1653.  General  allotment  scheme  for  lands  of  the  Creek  Nation 1153 

1654.  Method  of  ynitting  allotee  in  possession  of  his  allotment 1156 

1655.  Method  of  equalizing  allotment  values 1156 

1656.  Laying  out  towns  and  villages — Town  site  commission 1157 

1657.  Town   sites  along   railroads   in   Choctaw,   Cherokee,   Chickasaw 

and    Creek   nations 1 160 


CONTENTS.  Ivii 

SECTION  PAGE 

16»8.     Rights  of  persons  in  possession  of  town  lots  on  which  improve- 
ments have  been  made — Persons  in  possession  of  lots  and 

lands,  rights  of — Sale  of  town  lots — Taxes  on  town  lots.  .  . .  1160 

1659.  Locations  of  cemeteries,  courthouses,  jails,  etc. — Colleges   and 

churches     11 62 

1660.  Surveys  for  Clarksville,  Coweta,  Gibson  Station  and  Mounds.  .  1163 

1661.  Allotment  deeds  and  record  thereof 1164 

1662.  Reservation  of  lands  for  schools  and  other  institutions 1165 

1663.  Cities   are   authorized    to   issue   bonds   for   certain    public   im- 

provements      1 166 

1664.  Loyal  Creek  claims  and  self-emigration  claims 1167 

1665.  Tribal  funds  capitalized  for  equalizing  allotments 1168 

1666.  Citizenship  rolls,  how  made  up 1168 

1667.  Lien  for  enforcement  of  deferred  payments  under  this  agree- 

ment— Manner  of  paying  of  moneys  to  tribes;  payment  of 

moneys  to  equalize  allotments  and  expenses  of  surveys. .  .  .  1169 

1668.  Parents  the  natural  guardians  of  minors;  guardians  appointed 

by  the  court 1170 

1669.  Lease  of  lands  by  allotees  and  disposition  of  timber 1171 

1670.  Schools  and  maintenance  thereof 1172 

1671.  General  provisions  for  the  carrying  out  of  this  agreement 1173 


CHAPTER   XXV. 

Indian  Land  Laws — Federal  Law  Ratifying  and  Confirming  a  Sup- 
plemental Agreement  with  the  Creek  Tribe  and  for  Other  Pur- 
poses— Act  of  June  20,  1902. 

1672.  Preamble  to  supplemental  agreement  with  Creek  Tribe 1175 

1673.  Definition  of   terms 1176 

1674.  Amendment  of  section  two  of  the  original  Creek  agreement.  .  .  .  1176 

1675.  Amendment  of  paragraph  two  of  section  three  of  the  original 

Creek    agreement 1 177 

1676.  Commission  to  have  exclusive  jurisdiction  in  controversies  be- 

tween citizens  as  to  selection  of  lands 1178 

1677.  Descent  and  distribution  in  Creek  Nation  to  be  governed  by 

cliapter  forty-nine  of  Mansfield's  Digest  of  the  Statutes  of 

Arkansas    1178 

1678.  What  chiklren  entitled  to  enrollment 1179 

1679.  Establishment  of  public  roads 1 180 

1680.  Town  site  provisions  and  regulations 1181 

1681.  Regulations  as  to  cemeteries 1182 

1682.  Funds  not  needed  for  equalization  of  allotments,  how  paid  out.  .  1182 

1683.  Section  twenty-four  of  the  original  Creek  agreement  repealed.  .  1183 

1684.  Restrictions  on  alienation — Selection  of  homesteads 1183 

1685.  Selection  of  homesteads  for  minors  and  certain  incompetents — 

Descent  for  homesteads 1 183 


Iviii  CONTENTS. 

SECTION  PAGE 

I6816.     Lease  of  allotment  for  agricultural  and  grazing  purposes 1184- 

1687.  Lands  not  allotted  to  be  secured  for  grazing  purposes,  how.  .  .    11'85 

1688.  Section  eight  of  the  original   Creek   agreement   amended — Al- 

lotee  placed   in  possession  by  Indian  agent 11 8G 

1689.  General   provisions   for  the   enforcement   of   this   supplemental 

agreement    1186 


CHAPTER   XXVI. 

Indian  Land  Laws — Act  of  Congress  Providing  for  the  Final  Dis- 
position OF  the  Affairs  of  the  Five  Civilized  Tribes — Act  of 
April  26,  1906. 

1690.  Provisions  for  closing  the  enrollment  of  citizens   of   the  Five 

Civilized  Tribes — Motion  to  reopen  citizenship  cases,  how 
made 1 189 

1691.  Enrollment   of  minors   living   on   and   prior   to   March   fourth, 

nineteen  hundred  and  six — Illegitimate  children  to  take 
statue  of  mother — Provisions  as  to  equalization  of  allotment 
valuation — Enrollment  to  be  completed,  when — Provision  as 
to  application  for  enrollment  fixed  by  agreement — This  act 
not  to  apply  to  intermarried  whites  in  Cherokee  Nation.  .  .    1190 

1692.  Approval    of    roll    of    citizenship,    how    made — Homesteads    of 

Choctaw  and  Chickasaw  tribes 1191 

1693.  Names   transferred   from   approved   rolls   of   Five  Tribes,   how 

made 1192 

1694.  Patents    to    issue    in    the   name    of    allotee — Death    of    allotee 

before  issuance  of  patents — Patents  to  be  recorded,  where — 
Contests  pending 1 192 

1695.  Chiefs  of  the  Five  Civilized  Tribes  may  be  removed — Successors 

appointed — Secretary  of  interior  may  sign  patent  on  neglect 

of  chief  to  do  so — Provisions  as  to  Seminole  Nation 1193 

1696.  Lands  reserved  and  segregated  from  allotment 1194 

]()07.     Records    of   each    land    office — How    kejit — How    transferred — 

May  be  used  in  evidence 1 195 

1698.     Disbursements   on    account    of    loyal    Seminole    Indians — Court 

of  claims 1 195 

1099.     Secretary  of  the  interior  directed  to  assume  control  of  schools 

in  Five  Civilized   Tribes 1196 

1700.  Payment  of  claims  against  the  Five  Civilized  Tribes  and  col- 

lection of  the  reveniies  accruing  to  tlTe  same 1197 

1701.  Sale  of  town  lots  of  the  Five  Civilized  Tribes 1199 

1702.  Certain  coal  and  asphaltum  lands  reserved  from  sale 1199 

1703.  Certain    lands  to   be  conveyed   to   persons   and   corporations — 

Same  to  revert,  when — Reservation  of  railway  lands — 
Certain  rights  and  reservations  in  favor  of  Murrow  Indian 
Orphan  Home 1200 


CONTENTS. 


lix 


PAGE 


SECTION 

1704.  Sale  of  certain  school   property 1202 

1705.  Sale  of  residue  of  lands  after  allotments  have  been  made 1202 

1706.  Manner  of  distribution  of  funds  after  sale  of  lands 1203 

1707.  Secretary  of  the  interior  to  bring  suits  for  collection  of  money 

of  recovery  of  land 1204 

1708.  Restrictions  upon  alienation  of  land  allotted  to  the  Five  Civil- 

ized Tribes — Leases  for  one  year 1205 

1709.  Leases  on   full-blood    lands t206 

1710.  Certain  inherited  intestate  lands  of  the  Five  Civilized  Tribes 

disposed  of,  ho\v — Disposition  of  deceased  Mississippi  Choc- 
taw lands 1206 

1711.  Procedure  by  which  adult  and  minor  heirs  may  convey  certain 

lands — Land  may  be  devised  by  will,  when 1207 

1712.  Provisions  as  to  highways 1208 

1713.  Provisions  as  to  certain  public  utilities 1209 

1714.  Provisions  for  the  making  of  certain  municipal  improvements 

and  the  payment  of  the  same 1211 

1715.  Provisions  as  to  lands  unsold  after  dissolution  of  tribes 1213 

1716.  Tribal  existence  continued  for  certain  purposes — Legislature  of 

tribes  not  to  sit  for  period  longer  than  thirty  days  in  the 
year — Contracts  affecting  tribes  to  be  approved  by  the 
President   1213 

1717.  Reservation  from  allotment — Choctaws  and  Chickasaws 1214 

1718.  Reservation  from  allotment  and  canceling  of  certain  filings  or 

applications  for  allotment 1214 

1719.  Preparation  of  tribal  rolls 1215 

1720.  Enrollment  of  Mississippi  Choctaws 1216 

1721.  Provisions  for  closing  certain  rolls 1216 


CHAPTER   XXVII. 

Indian  Land  Laws — Federal  Law  Removing  Restrictions  from  Certain 

Lands  of  the  Five  Civilized  Tribes  and  for  Other  Purposes 

—Act  of  May  27,  1908. 

1722.  Enumeration  of   lands  from  which   restrictions  have  been   re- 

moved— Secretary  of  the  interior  may  remove  restrictions.    1219 

1723.  Allotted    lands    may    be    leased    by    allotee,    when — Must    be 

approved  by  secretary  of  the  interor,  when — May  be  made 

by  approval  of  county  court,  when 1220 

1724.  Age  and  blood  of  allotee — How  determined 1220 

1725.  Previous   oil,    gas    and    mineral    leases    requiring    approval   of 

secretary  of  interior,  not  invalidated,  when — Cancellation 

of  such  leases,  how  made 1221 

1726.  Unrestricted    lands    of    allotees    subject    to    taxes 1221 

1727.  Effect  of  attempted  lease  or  conveyance  of  restricted  lands.  .  .  .    1222 

1728.  Minor   allotees    under   control    of   county   courts — Government 


Ix  CONTENTS. 

SECTION  PAGE 

maj'  appoint  representatives  to  examine  the  conduct  of 
guardians  or  curators  of  minors,  powers  and  duties  of . .  .  .    1222 

1729.  Appropriation  for  expense  of  enforcing  act  of  March  twenty- 

seventh,  nineteen  hundred  and  eight — Restricted  lands  of 
minors  may  not  be  leased  or  incumbered  except  as  author- 
ized by  law  or  order  of  court — Suits  may  be  brought  by 
authority  of  secretary  of  interior  and  for  what  purpose.  .  .    1224 

1730.  Limitation  of  right  to  contest  allotment — Amendment  to  section 

twenty-three  of  an  act  approved  April  twenty-sixth,  nine- 
teen hundred  and  six 1225 

1731.  Removal  of   restrictions  by   death   of  allotee — Deed  to  be  ap- 

proved by  county  court — Homestead  of  the  allotee  to 
remain  for  the  use  of  issue  born  after  March  fourth,  nine- 
teen hundred  and  six — When  homestead  of  allotee  may  be 
conveyed  by  will 1226 

1732.  Payments  of  moneys  to  Choctaw  and  Chickasaw  nations — Pay- 

ment of  royalties  on  mineral  leases  on  allotted  Seminole 
lands 1226 

1733.  Land  records  to  be  made  and  furnished  to  various  counties.  .  .  .    1227 

1734.  Amendment    of    paragraph    two    of    section    eleven    of    an   act 

approved  April  twenty-six,  nineteen  hundred  and  six — 
Records  and  moneys  of  the  Five  Civilized  Tribes  to  be 
accounted  for — Section  thirteen  of  an  act  approved  April 
twenty-six,  nineteen  hundred  and  six,  not  to  apply  to  town 
lots  in  town  sites 1228 


CHAPTER    XXVIII. 

Indian  Land  Laws — Governmental  Control  of — Construction  of  Stat- 
utes Relatino  Thereto — Descent  and  Distribution  for  Creek 
Nation. 

1735.  Covernmontal  control  of  allotted  lands — Wards  of  the  gov- 
ernment        1231 

1730.  Rules  for  tlie  construction  of  federal  laws  relating  to  the  con- 
trol of  the  Indian  and  his  lands 1235 

1737.  Tlie  general    rules   for    the   construction    of    a   statute   may   be 

reversed  when  necessary  to  protect  allotee's  land 1236 

1738.  Enabling  act  reserves  right  to  general  government  to  legislate 

for  the  allotted  lands  of  the  Indian 1237 

1739.  Constitutional    power    of    Congress    to    remove    restrictions    or 

abrogate    treaty 1239 

1740.  Reason  for  the  limitation  of  the  riglit  of  the  Indian  to  convey 

his  land 1239 

1741.  Law  cnntrolling  tlie  course  of  descent  of  allotted  lands  in  tlie 

Creek  Nation — The  Arkansas  statute 1240 

1742.  Change  in  the  Creek  law  of  descent  and  distribution 1241 


CONTENTS.  Ixi 


SECTION 


PAGE 


1743.  Descent  and  distribution  changed  to  the  Arkansas  statute.  .  .  .  1242 

1744.  The  change  from  the  Arkansas  statute  to  the  statute  of  Okla- 

homa       1-^3 

1745.  Treaty  and  patent  by  which  Creek  Nation  was  given  title  to 

lands 1244 

1746.  Occupancy  of  the  lands  by  Creek  Nation, 124-6 

1747.  Creek  freedmen — Origin  of  title  to  lands  for 1246 

1748.  Status   of   allotee   receiving  certificate   of   allotment  who   dies 

before  patent  issues 1247 

1749.  The  inception  of  title  of  allotee 1248 

1750.  Conveyance    by    a    Creek   citizen    not   of   Indian    blood    before 

patent   issued 1248 

1751.  The  enrollment  of  the  freedmen 1249 

1752.  The  Creek  statute  of  descent  and  distribution 1249 

1753.  Meaning  of  the  term  "nearest  relation"  and  "heir"  under  the 

statute  of  the  Creek  Nation 1251 

1754.  Construction  of  law  of  descent  and  distribution  by  the  Supreme 

Court  of  the  Creek  Nation  to  be  followed 1253 

1755.  General  discussion  of  the  Creek  statute — Descent  cast,  when..  1253 

1756.  A  noncitizen  husband  of  Creek  freedman,  dying  without  issue, 

may  inherit  from  the  wife — The  inheritance  where  husband 

murders  wife  to  take  same 1255 

1757.  Rule  of  descent  where  allotment  selected  prior  to  ratification 

of   original   agreement 1258 

1758.  Special  instances  of  descent  cast  under  laws  of  Creek  Nation.  1259 
17159.     Special  instances  of  descent  cast  under  the  Arkansas  statute.  .  1264 

1760.  Efl'ect  of  statehood  on  restrictions 1'272 

1761.  Removal  of  restrictions  does  not  validate  prior  judgment  lien 

on    land 1273 

1762.  Date  of  removal  of  restrictions 1274 

1763.  Powers  of  court  of  equity  to  grant  relief  in  allotment  contests  1276 

1764.  Judicial  powers  of  the  commission  to  the  Five  Civilized  Tribes  1277 

1765.  An  oil  and  gas  mining  lease  by  allotee  an  alienation  within 

the  meaning  of  the  statute 1278 

1766.  Title  of   Creek  citizen  not  affected   by  being  included  within 

the  incorporate  limits  of  a  town 1278 

1767.  Special  improvement  contest  by  Creek  citizen  town  lot 1279 

1768.  Procedure  by  which   secretary  of  the   interior   is   required   to 

restore  names  stricken  from  the  rolls 1280 


CHAPTER   XXIX. 

Cbeek  Law — Ixhebited  Homesteads. 

1769.  The  allotment  and  homestead  deed — Their  provisions  and  terms  1281 

1770.  Allotment  of  homesteads  and  surplus  and  restrictions  thereon  1283 

1771.  Construction  of  the  four  provisions  of  federal  law  above  set 

forth— Act  of  May  27,  1908 1291 


Ixii  CONTENTS. 

SECTION  PAGE 

177'2.     Discussion    by    Bledsoe 1293 

1773      Certain  restrictions  in  patents  are  covenants  and  run  with  the 

land     1293 

1774.  Deed    of    full-blood    heir    dated    September    sixteen,    nineteen 

hundred  and  nine,  whose  ancestor  died  in  August,  nine- 
teen hundred  and  seven,  need  only  be  approved  by  the 
county  court 1294 

1775.  Procedure    by    which    restrictions    on    allotted    lands    are    re- 

moved         1-94 

1775a.  Restrictions  under  original  Seminole  agreement 1294 


CPIAPTER    XXX. 

Indian  Land  Laws — Special   Construction  of  Federal  Law — Descent 
AND  Distribution  for  the  Choctaw  Nation. 

1776.  Summary   of   laws    for    Choctaw   and    Chickasaw   nations....    1296 

1777.  Construction  of  terms  in  the  patent  from  the  federal  govern- 

ment to   the   Choctaw   Nation 1299 

1778.  Lands  of  Choctaw  and  Chickasaw  nations  combined 1299 

1779.  District  courts  no  power  to  enjoin  contest  proceedings  before 

commissioner  to  Five   Civilized  Tribes 1300 

1780.  Power    of    secretary    of    the    interior    to    cancel    selection    of 

allotment  1300 

1781.  Descent  and  distribution  for   Choctaws  and  Chickasaws  dying 

before  selection  of  allotment  and  entitled  to  allotment.  .  .  .    1301 

1782.  Rights   of   a   noncitizen    by   intermarriage,    having   received    a 

certificate   of   allotment 1302 

17'83.     Statute  of  descent  for  Chickasaw  Nation 1302 

1784.  Statute  of  descent  for  Choctaw  Nation 1303 

1785.  Indian   courts  abolished   and  courts   given   jurisdiction   under 

the  Arkansas  law 1304 

1786.  Descent   of    an    allotment   where    name    appears    on    roll,   but 

wlio  died  before  allotment 1305 

1787.  Inheritance  of  ancestral  and  nonancestral  property 1310 

1788.  Dower,    curtesy,    removal    of    restrictions    and    other    kindred 

topics    l'^^2 

1789.  Deed  before  thirty  day  period  void 1312 

1790.  Notes   given   to   protect   sale   of   land   in   violation    of   restric- 

tions, void 1314 

1791.  Lands  of  deceased  Choctaw  not  subject  to  'debts,  when 1314 

1702.     Conveyance  of  certain  deceased  lands 1315 

1793.  Evidence  in  certain  cases  sufficient  to  maintain  ejectment.  .  .  .  1315 

1794.  Lease  in  violation  of  Atoka  agreement 1315 

1795.  Approval  of  court  required,  when 1316 

1796.  Power  of  adult,  intermarried  citizen  of  the  Chickasaw  Nation 

to  convey  surplus  allotment 1316 


CONTENTS.  Ixiii 

CHAPTER   XXXI. 

Indian   Land   Laws — Federal  Law  Providing   foe  the  Allotment  op 

Lands  to  the  Cherokee  Nation. 
section  page 

1797.  History  of  treaties  and  laws  up  to  allotment  of  lands 1317 

1798.  Definition  of  words  and  terms 1324- 

1799.  Appraisement  of  Cherokee  lands 1325 

1800.  General  allotment  provisions 1325 

1801.  Death  of  allotee  prior  to  receiving  allotment — Descent  of  such 

allotment  under  chapter  forty-nine  of  Mansfield's  Digest — 
Selection  of  allotment  by  executor — Administrator — By 
Dawes   Commission 1327 

1802.  Effect' of  allotment  certificate — How  placed  in  possession — Mat- 

ters relative  to  the  appraisement  and  allotment  of  land,  how 
determined 1328 

1803.  Allotments  to  Delawares  who  are  members  of  nation 1328 

1804.  Reservation  of  certain  lands 1329 

1805.  Enrollment  of  citizens  of  Cherokee  Nation 1332 

1806.  Regulations   for   schools 1334 

1807.  Public    roads 1335 

1808.  Town  site  regulations — Right  of  person  in  possession  to  pur- 

chase lot — Sale  of  lots  not  improved  and  not  in  possession 

of    anyone 1335 

1809.  Conveyance  to  allotee  of  allotment — Record  of  his  title 1340 

1810.  Termination  of  tribal  government — ^Collection  of  revenues  be- 

longing  to    tribe — Funds   of   tribe   to   be    paid    out   under 

direction  of  secretary 1341 

1811.  Court  of  claims — Appeal — Contest 1342 

1812.  Selection  of  allotments  for  minors,  incompetents,  prisoners.  .  .  .  1343 

1813.  Allotee  taking  lands   around   seminaries 1344 

1814.  Leases  for  agricultural  and  grazing  purposes 1344 

1815.  Provisions  of  act  of  June  twenty-eighth,  eighteen  hundred  and 

ninety-eight 1345 

1816.  Provisions  as  to  taking  effect  of  this  act 1345 


CHAPTER    XXXn. 

Cherokee  Statute  of  Descent  and  Distribution  and  Construction  of 
THE  FedeejVL  Law  Applicable  to  the  Cherokee  Nation. 

1817.  General    principles 1347 

1818.  The  Cherokee  statute  of  descent  and  distribution 1348 

1819.  Cherokee  enrollment — Rights  of  intermarried  whites — Married 

out  and  abandoned  whites 1350 

1820.  Allotment — Persons    entitled 1352 

1821.  What  constitutes  an  improvement  under  the  law 1354 

1822.  .  Marriage  of  minor  male  ward  does  not  terminate  guardianship  1354 


Ixiv  CONTENTS. 

SECTION  PAGE 

1823.  Evidence — Judicial  notice — Rights  of  white  woman  intermarry- 

ing with  Indian 1354 

1824.  All  lands  allotted  to  Cherokees  inalienable,  how 1355 

1825.  Injunction  will  not  lie  to  prevent  allotment,  an  appeal  having 

been    taken 1 355 

11826.     Sale  of  land  by  guardian 1355 

1827.  Validity  of  mortgage  given  by  Cherokee 1356 

1828.  A  court  of  equity  has  power  to  determine  the  validity  of  patent 

issued  by  town  site  commission  of  the  Cherokee  Nation.  .  .    1356 

1829.  Decision  of  town  site  commission — Attack  in  court  of  equity.  .    1357 

1830.  Effect  of  compilation  of  original  Cherokee  statutes — Rights  of 

adopted  whites 135/ 

1831.  Ejection   by    allotee    of    Cherokee   Nation — ^Certificate    as   evi- 

dence of  title 1358 

1832.  Constitutionality  of    act   of   July   first,    eighteen   hundred   and 

ninety-eight,  and  other  laws 1358 

1'833.     General  provisions — Minors  and  a  sale  of  their  lands 1359 

1834.     Limit  for  period  of  alienation 1360 


CHAPTER    XXXIII. 

Indian  Land  Laws — Seminole  Nation. 

1935.  History  of  laws  and  treaties 1361 

1836.  A  part  of  Creek  Nation  by  agreement 1362 

1837.  Designation  of  tract  of  land  for  Seminole  Nation 1362 

1838.  Cession  by  Creek  Nation  to  Seminole  Nation 1363 

1839.  Laws  and  treaties  of  Seminole  Nation  as  to  allotted  lands 1364 

1840.  Enrollment  and  allotment  of  Seminole  lands 1367 

1841.  Restrictions   on   alienation 1368 

1841a.  Restriction  under  original  Seminole  agreement  of  alloted  lands  1374 

1842.  Descent  for  Seminole  Nation 1375 

1843.  Arkansas  law  of  descent,  and  not  Seminole  agreement,  controls 

descent,  when 1376 

1844.  Seminole    citizenship 1377 

1845.  Dower,  curtesy  and  wills 1378 


CHAPTER   XXXIV. 

Indian  Land  Laws — Aokekment  Between  the  Commission  to  the  Fi^t: 
CiviLizicD  Tribes  and  the  Seminole  Commission. 

1846.  Preamble  to  agreement  with  Seminole  Commission 1379 

1847.  Class  and  grade  of  lands — Selection  of  allotments — Certificates 

of    allotments 13^0 

1848.  Sales  of  allotments  void,  wlion — Leases  of  allotments 1380 

1849.  Leases  for  coal,  minerals  and  oil — Royalties 1380 


CONTENTS.  IxV 

SECTION  PAGE 

1850.  Provisions  as  to  town  site  commission  of  Wewoka 1381 

1851.  Appropriation   for   school   purposes   for    Seminoles — Allotment 

for  academies 1381 

1852.  Reservations  for  cluu-ch  and  school  purposes 1382 

1853.  Allotment  to  be  made,  when  and  how — Homestead 1382 

1854.  Equalization    of    allotment    values — Loyal    Seminole    claims — 

United  States  Court  at  Wewoka — Intoxicating  liquors....  1383 

1855.  Jurisdiction  conferred  on  United  States  courts 1384 

1856.  Agreement  to  purchase  lands  of  the  Creek  Nation 1384 

1857.  Supplemental  agreement  of  October  seventh,  eighteen  hundred 

and  ninety-nine — Preamble 1385 

1858.  Tribal  rolls,  how  made 1386 

1859.  Allotments  to  certain  deceased  members  shall  descend,  how.  .  .  1386 

1860.  Provisions  as  to  ratification  of  agreement 1387 

1861.  Town  site  laws 1387 


CHAPTER   XXXV. 

The  Dawes  Commission — Crr.\tion  of — Powers  and  Duties  of — Enroll- 
ment Records  of  Five  Civilized  Tribes. 

1862.  Creation  of  Dawes  Commission 1388 

1863.  Duties — Equal  distribution  of  land   138& 

1864.  Negotiations  for  allotment  not  to  affect  federal  control 1390 

1865.  Powers  and  duties  conferred  upon  the  commission — Control  as 

to  application  for  citizenship 1390 

1866.  Trial  in  applications  for  citizenship — Appeal  therefrom 1391 

1867.  Completion  of  roll  of  citizenship  by  commission 1392 

1868.  Rolls  of  citizenship — Where  to  be  filed — Report  of  commission 

to  Congress  of  leases 1392 

1869.  Completion  of  tribal  rolls  by  the  commission 1392 

1870.  Appeal  in  citizenship  cases 1393 

1871.  Continuance  of  authority  of  commission 1394 

1872.  Duties   of   commission   as  to  Mississippi   Choctaws — ^Contracts 

affecting  lands 1394 

1873.  Finality  of  rolls  made  by  commission 1395 

1874.  Creek  children  to  be  added  to  rolls  by  the  commission 1395 

1875.  Further  continuance  of  the  authority  of  the  commission 1395 

1876.  Application  for  citizenship  enrollment 1396 

1877.  Closing  Choctaw  and  Chickasaw  rolls  by  the  commission 1396 

1878.  Closing  Creek  rolls  by  the  commission 1397 

1879.  Closing  Seminole  rolls  by  the  commission 1397 

1880.  Record  of  tribal   rolls — Pimishment  for   copy   thereof — Enroll- 

ment of  Mississippi  Choctaw  full  bloods  and  closing  of  rolls  1397 

1881.  Federal   law  providing  for  the  filing,   recording  and  acknowl- 

edging of  instruments  of  conveyance 1398 


Ixvi  CONTENTS, 

CHAPTER    XXXVI. 

The  Law  and  Procedure  by  Which  Title  to  Inherited  Lands  of  Full- 
Blood  Indians  is  Conveyed, 
section  page 

18i82.     History  of  the  law  leading  up  to  the  allotment  of  land  by  the 

government  to  the  Creek  Indians 1400 

1883.  Individual  allotments  of  land  under  the  original  Creek  agree- 

ment       1403 

1884.  Restrictions  ujKin  alienation  of  the  Five  Civilized  Tribes 1403 

1885.  Approval  of  secretary  of  the  interior  necessary  to  convey  in- 

herited lands  of  full-blood  Creek  Indians  between  the  date 
of  the  act  of  nineteen  hundred  and  two  and  the  act  of 
nineteen  hundred  and  eight 1406 

1886.  The  removal  of  restrictions  upon  the  allotted  lands  of  the  Five 

Civilized  Tribes  by  the  Act  of  May  twenty-seven,  nineteen 
hundred  and  eight 1412 

1887.  Death  of  any  allotee  of  the  Five  Civilized  Tribes  removes  re- 

strictions upon  alienation,  when — Approval  by  county  court  1412 

1888.  Approval  of  the  court  should  be  made  for  the  conveyance  of 

interest  of  heirs  of  deceased  allotees  dying  before  or  after 
May  twenty-seventh,  nineteen  hundred  and  eight 1413 

1889.  Procedure  by  wliich  a  conveyance  of  full-blood  inherited  land 

is  approved  by  the  county  court — Form  for  the  petition.  .  .  .    1414 

1890.  Form  for  proof  of  heirship 1415 

1891.  Form  for  use  in  taking  testimony  in  case 1419 

1892.  Form   for   order   of  court  approving  deed   conveying  inherited 

full-blood  land   1420 


CHAPTER   XXXVII. 

Indian   Land   Laws — General    Allotment    Provisions    Which    Do   Not 
Extend  to  the  Cherokees,  Cheeks,  Choctaws,  Chickasaws,  Semi- 

NOLES  AND   OsAGES,  MlAMAS  AND   PeORIAS   AND   SaCS  AND   FoXES   IN   THE 

Indian  Territory. 

1803.     General  allotment  aet — Selection — Preference — Right — Selection, 

by   wlioni   made    1422 

1894.  Allotm<'nts  made  by  whom 1423 

1895.  Selection  of  allotment  out  of  public  lands 1423 

1806.     Trust  patent  to  issue  to  allotee — Restrictions  on  alienation — 

Descent  and  partition — Purchase  of  Keservation 1424 

1897.  Ceded  lands  for  settlement — Patent  to  settlers 1425 

1898.  Allotment  to  religious  society 1426 

1899.  Allote<'s  subject  to  state  or  territorial  law 1427 

1000.     Alh)tees  iM'come  citizens 1427 

1901.  Irrigated    lands 1427 

1902.  Tribes  not  included  in  the  allotment  act 1428 


CONTENTS.  Ixvii 

SECTION  PAGE 

190'3.     Survey  appropriation 1428 

1904.  Right  of  eminent  domain 1428 

1905.  Removal  of  Southern  Utes 1428 

1906.  President  may  direct  allotments,  when 1429 

1907.  Equalization  of  allotments 1430 

1908.  Provisions  as  to  leases 1430 

1909.  Public  lands  subject  to  allotment 1431 

1910.  Descent   and    distribution 1431 

1911.  Allotee  a  citizen  at  end  of  trust  period 1432 

1912.  Allotments  exempted  from  debts 1423 

CHAPTER    XXXVIII. 

Indian  Land  Laws — Osage,  Kansas  ob  Kaw  Xations. 

1913.  Outline  of  treaties  of  the  Osage  Indians — Treaty  grant  of  land  1436 

1914.  Manner  of  the  enrollment  of  tribal  land  of  said  tribe 1438 

1915.  Manner  of  selecting  homestead — Certain  restrictions  upon  alien- 

ation of  certain  lands 1439 

1916.  Manner  of  selecting  homestead — The  restriction  upon  alienation 

of  allotted  lands 1441 

1917.  Division  of  remaining  land  by  commission 1441 

1918.  Appointment  and  selection  of  commission  to  divide  Osage  lands 

— Powers  and  duties  of  such  commission 1442 

1919.  The  manner  in  which  restrictions  upon  alienation  are  removed 

— Taxation — Oil  and  other  mineral  leases 1442 

1920.  Reservation  of  certain  lands  from  reservation  and  allotment — 

Sale  of  certain  reserved  lands 1443 

19.21.     When  governmental  control  of  Osage  land  shall  terminate.  .  .  .  1446 

1922.  Descent  and  distribution  of  Osage  land 1446 

1923.  Control  of  minor  Osage  land 1446 

]i924.     Patents  to  be  executed  by  chief  of  Osage  Tribe 1447 

1925.  Later  provision  for  sale  of  land  of  members  of  Kaw  or  Kansas 

and  Osage  Tribes 1447 

1926.  Rules  and  regulations  of  secretary  of  the  interior  for  sale  of 

surplus   lands  of  the   allotee  of  the  Kansas  or  Kaw   and 
Osage  Tribes 1447 

1927.  Town  site  commission  law  for  Osage  Nation 1448 

1928.  Approval   of  secretary   of   interior   required  to   validate   deed, 

when 1448 

1929.  Restrictions  a  covenant  running  with  the  land 1449 

1930.  Enrollment  and  membership  in  the  Kansas  or  Kaw  Tribe 1449 

1931.  Division  of  lands  of  Kaw  Tribe — Restrictions  upon  alienation — 

Homestead — Minors 1450 

1932.  Division  of  surplus  land — Kaw  Tribe 1451 

1933.  Allotment   deeds— Kaw   Tribe 1451 

1934.  Reservation  from  allotment — Sale  of  certain  town  lots  in  desig- 

nated town  site — Kaw  tribe 1452 


Ixviii  CONTENTS. 

SECTION  PAGE 

1935.  Sale  of  trust  and  diminished  reserved  land — Kaw  tribe 1453 

1936.  Allotee  may  have  permission  to  sell  land,  when 1453 

1937.  Provision  for  sale  of  inherited  and  minor  land 1454 

1938.  Jurisdiction  of  courts  for  Kaw  and  Osage  Indians 1454 


CHAPTER    XXXIX. 

Indian  Land  Laws — ^Marriage  and  Divorce. 

1939.  Certain  Indian  marriages  declared  legal 1455 

1940.  Children  of  certain  Indian  marriages  legitimatized 1455 

1941.  Legality  of  marriage  according  to  the  Indian  custom 1456 

1942.  Marriage  of  Indian  must  now  be  according  to  law 1456 

1943.  Divorce  law  for  the  Indian 1456 

1944.  When  Indian  guilty  of  bigamy 1456 

1945.  Indian  required  to  select  which  of  wives 1457 

1946.  Record   of  selection  of  wife  by  Indian  husband — Evidence  of 

record   1457 

1947.  Validity  of  tribal  marriage  and  divorce l4o'S 

1948.  Property  rights  of  white  men  by  marriage  with  Indian  women  1459 

1949.  Citizenship  of  Indian  women  marrying  white  men 1459 

1950.  Proof  as  to  marriage  between  whites  and  Indians 1459 


CHAPTER    XL. 

Town  Site  Laws  of  the  Five  Civilized  Tribes. 

1951.     Choctaw,  Chickasaw,  Creek  and  Cherokee  nations — Act  of  June 

twenty-eighth,  eigliteen  hundred  and  ninety-eight 1463 

195'2.     Choctaw,  Chickasaw,  Creek  and  Cherokee  nations — Survey,  plat 

and  sale  of  town  lots 1463 

1953.  Choctaw,   Chickasaw,  Creek   and   Cherokee   nations — Secretary 

of  interior  authorized  to  survey  and  plat  town  sites 1465 

1954.  Choctaw,  Chickasaw,  Creek  and  Cherokee  nations — Where  plats 

are  to  be  kept 1466 

1955.  Choctaw  and  Chickasaw  nations — Wlien   work  under  Choctaw 

and  Chickasaw  agreement  shall  begin 1466 

1956.  Choctaw,    Chickasaw,   Creek    and    Cherokee   nations — Appoint- 

ment of  town  site  commission — Appraisement  and  sale  of 

lots    y 1467 

1957.  Choctaw,    Chickasaw,    Creek    and    Cherokee    nations — Separate 

town  site  commission  for  any  town 1467 

1958.  Choctaw,  Chickasaw,  Creek  and  Cherokee  nations — When  town 

maj'  survey  and  plat 1468 

1959.  Choctaw,   Chickasaw,  Creek   and    Cherokee  nations — Appraise- 

ment and  sale 1468 


CONTENTS.  Ixix 

SECTIOX  PAGE 

1960.     Choctaw,  Chickasaw,  Creek  and  Cherokee  nations — Boundaries 

of  corporations  and  town  sites 1468 

1061.     Choctaw,  Chickasaw,  Creek  and  Cherokee  nations — Commission 

may  appropriate  lands  for  town  sites,   when 1469 

1962.  Creek  Nation— Town  site  laws  of 1470 

1963.  Creek  Nation — When  and  how  occupant  of  any  town  lot  may 

purchase   same 1470 

1964.  Creek  Nation — When  and  how  resident  of  a  lot  not  improved 

may  purchase 1471 

1965.  Creek  Nation — When  and  how  purchaser  of  land  prior  to  this 

act  may  acquire  title 1471 

11966,     Creek  Nation — Town  lots  not  having  any  improvements  thereon 

to  be  sold  within  twelve  months 1471 

1967.  Creek   Nation — Owner  of   improvements   to  be   notified   of  ap- 

praisement— Amount  and  manner  of  his  payment 1472 

1968.  Creek  Nation — Town  lots  of  a  purchaser  not  subject  to  execu- 

tion—Taxes    1472 

1969.  Creek  Nation — Location,  survey  and  sale  of  cemetery  lots....  1473 

1970.  Creek  Nation — Grounds  for  public  buildings,  how  procured.  .  .  .  1473 

1971.  Creek  Nation — Surveys  of  Clarkeville,  Coweta,  Gibson  Station 

and   Mounds 1473 

1972.  Creek  Nation — Lien  for  purchase  price  of  town  lots 1474 

1973.  Creek  Nation — Town  site  provisions  under  supplemental  Creek 

agreement    1474 

1974.  Creek  Nation — Other   provisions  as  to   cemeteries  and  sale  of 

lots— Parks   1475 

1975.  Creek  town  site  law— Effect  of  bill  of  sale 1476 

1976.  Creek  Nation — Secretary  of  the  interior  has  control  of  the  des- 

ignation of  town  sites — Kxtent  of  town  sites  to  be  measured 

by  needs  of  town 1477 

1977.  Cherokee  Nation — Owner  compensated  for  improvements 1478 

1978.  Cherokee  Nation — Manner  of  laying  out  town  sites  in  towns 

having  less  than  200  population 1478 

1979.  Cherokee  Nation — Preference  right  to  purchase 1479 

1980.  Cherokee  Nation — Sale  of  unimproved  town  lots 1480 

1981.  Cherokee    Nation — Sale    of    town    lots    having    improvements 

thereon — Payment   1480 

1982.  Cherokee  Nation — Sale  where  owner  of  improvements  fails  to 

purchase 1481 

1983.  Cherokee  Nation — Planner  of  sale  of  unimproved  town  lots.  .  .  .    1481 

1984.  Cherokee  Nation — Towns  having  less  than  200  population  and 

not  otherwise  provided  for 1481 

1085.     Cherokee   Nation — Cemeteries — Parks 1482 

1986.  Cherokee   Nation — Expense   of   surveying,   platting  and   dispo- 

sition of  town  lots 1482 

1987.  Cherokee  Nation — Taxes  and  interest 1483 

1988.  Cherokee  Nation — Lots  for  church  purposes 1483 


Ixx  CONTENTS. 

SECTION  PAGE 

19S9.     Cherokee  Nation — The  secretary  of  interior  may  appoint  town 

site  commission,  when 14S3 

1990.  Cherokee  Nation — Who  may  bid  and  manner  of  payment 14'84 

1991.  Cherokee  Nation — Purchaser  of  lot  for  public  buildings 1484 

1992.  Cherokee  Nation — Patents  to  purchasers  of  lots 1484 

1993.  Cherokee  Nation — Patents  to  be  approved  by  secretary  of  in- 

terior      1485 

1994.  Cherokee  Nation — Effect  of  acceptance  of  patent 1485 

1995.  Cherokee  Nation — Acceptance  of  patents  for  minors 1485 

1996.  Cherokee  Nation — Patents  to  be  recorded 1485 

1997.  Cherokee,  Choctaw,  Chickasaw  and   Creek  nations — When  sec- 

tion   13   of  act  of   Congress   approved   April   twenty-sixth, 
nineteen  hundred  and  six,  shall  not  apply 1486 

1998.  Cherokee  Nation — Jurisdiction  of  town  site  commission  in  con- 

test for  ownership  of  lot — Equity  jurisdiction  of  courts  in 
such   contest 1486 

1999.  Cherokee  Nation — Limitation  of  laws  of  that  nation 1486 

2000.  Chickasaw  and  Choctaw  nations — Survey,  appraisement,  deeds  1487 

2001.  Chickasaw  and  Choctaw  nations — Provisions      for      cemeteries 

and  churches 1489 

2002.  Chickasaw  and  Choctaw  nations — Approval  of  town  site  laws 

in  act  of  May  thirty-first,  nineteen   hundred 1490 

2003.  Chickasaw  and  Choctaw  nations — ^Acreage  to  town  sites  to  be 

added,   when 1491 

2004.  Chickasaw  and  Choctaw  nations — Compensation  to  owner  where 

lands  taken  for  toAvn  site  purposes 1491 

2005.  Chickasaw  and  Choctaw  nations — Additional   commissions  au- 

thorized,  when — Secretary   may   appoint — Additional   com- 
missioners authorized 1492 

2006.  Chickasaw  and  Choctaw  nations — Patents  to  purchasers 1492 

2007.  Chickasaw  and  Choctaw  nations — Town  sites  for  towns  of  200 

population  or  less 1493 

2008.  Cliickasaw  and  Choctaw  nations — Other  town  site  provisions.  .    1493 

2009.  Seminole  town  site  law — Preamble — Commissioners  appointed.  .    1494 

2010.  Seminole  town  site  law — Authority  of  commission — Size  of  lots 

— Public    buildings 1494 

2011.  Seminole  town  site  law — Compensation  to  owners 1405 

2012.  Seminole  town  site   law — Description  of   land — ^Commissioners 

authorized  to  sell  or  lease  lots 1495 

2013.  Seminole  town  site  law — Records  required  to  be  kept  by  com- 

missioners— Their  compensation 1496 

2014.  Seminole   town    site    Inw — A])pointment   of   city    officials — City 

marshal — City    attorney — Police    judge — Other    powers    of 
commissioners  as  to  government  of  cities 1497 

2015.  Seminole  town  site  law — The  capital  of  the  Seminole  Nation.  .    1498 

2016.  Joint  resolution  extending  tribal  governments 1408 

2017.  Abolishment  of  town  site  commissions  for  the  Choctaw,  Chick- 

asaw, Cherokee  and  Creek  nations 1498 

2018.  Removal  of  restrictions  for  town  site  purposes 1499 


CONTENTS.  Ixxi 

CHAPTER    XLI. 

Indian  Land  Laws — The  Law  and  Procedure — Forms  by  Which  Re- 
stricted La>-ds  and  the  Lands  of  Minor  Freedmen  and  Indians  of 
THE  Five  Civilized  Tribes  are  Sold,  Leased  for  Oil,  Gas  and  Otheb 
MI^^NG  Purposes,  and  fob  Agricultural  and  Gbazing  Purposes. 


section 


page 


2019.  Creek  citizens  may  lease  for  grazing  purposes 1502 

2020.  Creel:  citizens  may  lease  for  agricultural  and  grazing  purposes.    1502 

2021.  Restrictions  on  lands  of  full-blood  Creeks,   Seminoles,  Chero- 

kees,   Chickasaws  and  Choctaws 1503 

2022.  The  law  and  procedure  for  leasing  lands  of  the  Five  Civilized 

Tribes   by   act   of    May  twenty-seventh,    nineteen    hundred 

and  eight 1504 

2023.  Rules  and  regulations  for  leasing  restricted  lands  and  for  the 

removal  of  restrictions  on  such  lands 1506 

2024.  Local  representatives — How  designated — Regulations  and  juris- 

diction of  district  agent 1509 

2025.  Duties  of  district  agent — Agent  can  have  no  interest   in  land 

of  tribes 1510 

2026.  Agent  must  be  in  office,  when — In  field,  when 1511 

2027.  Agent's  duty  as  to  records — Must  report,  when 1511 

2028.  Copies  of  reports  of  district  agent  to  probate  courts  forwarded 

to  Indian  agent — Leases   for  approval   of  secretary   of   in- 
terior filed,  where 1511 

2029.  Applications  for  removal  of  restrictions,  where  filed 1512 

2030.  Revision  of  revised  regulations  of  department  of  April  twen- 

tieth, nineteen  hundred  and  eight 1512 

2031.  Leases  must  be  presented  to  district  agent 1512 

2032.  Regulation  of  term  of  mineral  lease  on  minor  lands 1512 

2033.  Regulation  as  to  mineral  lease  on  Seminole  lands 1513 

2034.  Amendment  of  section  ten  of  the  regulations  of  April  twentieth, 

nineteen  hundred  and  eight 1513 

2035.  Regulations   for   agricultural,   grazing   and   other   leases    other 

than    mineral 1513 

203-6.  Application  for  removal  of  restrictions  to  be  made,  where — The 
classes  of  restricted  lands  to  which  regulations  of  depart- 
ment of  interior  apply 1514 

2037.  Duty  of   district   agent  to   forward   application — Secretary   of 

interior  will  remove  restrictions,  when  and  how 1515 

2038.  Procedure  when  restrictions  are  to  be  removed  from  land — Ad- 

vertisement— Bids — ^^Check — Right  to  reject  bid,  etc 1515 

2039.  District  agent  to  inspect  land  before  sale — Appraisement  before 

sale    1516 

2040.  The  form  for  the  order  removing  restrictions 1517 

2041.  Form  for  the  indorsement  on  deed — Delivery  of  deed  to  district 

agent     lol7 

2042.  Duty  of  district  agent  as  to  disbursement  of  proceeds  of  sale — 

Confirmation  of  sale 1518 


Ixxii 


CONTENTS. 


SECTION  PAGE 

2043.  Method  of  procedure  to  procure  oil  and  gas  mining  leases  and 

other  mineral  leases  on  restricted  land 1518 

2044.  Method   of   procedure  where   oil  and  gas  lease  is  procured  on 

restricted  lands  by  corporation 1519 

2045.  Procedure   where    lessor    is    a   minor — Heirs    of    allotted    land 

may  join,  when 1520 

2046.  Bond   to  be   furnished  by   lessees — Indian   agent   may   require 

furt'ier   information,   when;    effect   of  failure   of   lessee   to 

give  bond 1521 

2047.  The  amount  of  royalty  to  be  paid  on  oil  leases — Increase  of .  .  .  .  1522 

2048.  Amount  of  royalty  on  gas-producing  well 1524 

2049.  The  amount  of  royalty  on  coal  and  asphaltum  leases 1525 

2050.  How   rentals   for   gold,   silver,   iron,   shale,    lumber,   stone   and 

other   minerals   determined 1525 

2051.  How  royalties  are  to  be  paid 1525 

2052.  Bonus   per   acre  required   to  be   paid   until   producing  well   is 

completed lo-o 

2053.  Requirement  as   to   operating  and  caring   for  oil   and  gas  on 

part  of  lessee 1527 

2054.  Procedure  where  lease  is  assigned 1533 

2055.  Method  of  cancellation  of  lease 1534 

2056.  Departmental  forms  for  procedure  for  oil  and  gas  mining  leases  1534 

2057.  Procedure  where  restrictions  have  been  or  may  be  removed — 

Leases  executed  before  removal  of  restrictions 1535 

2058.  Procedure  for  agricultural  and  grazing  leases — ^Not  to  be  longer 

than  for  a  term  of  five  years — Lessee  required  to  furnish 

bond   1^37 

2059.  Form  for  order  removing  restrictions  on  land 1538 

2060.  Another  form  for  order  removing  restrictions  on  land 1539 

20i61.     Form  for  application  for  removal  of  restrictions 1539 

2062.  Form  for  oil  and  gas  mining  lease Nation 1540 

2063.  Form  for  application  for  approval  of  oil  and  gas  mining  lease.  .    1541 

2064.  The  form  for  the  bond 1547 

2065.  The  form  or  the  back  of  the  bond 1548 

2066.  Form  for  affidavits  of  Indian  lessor  and  lessee — Proof  of  bonus 

— No  development 1551 

2067.  Form   for   affidavits   showing   authority  of   officers   to   execute 

lease — Bond  and  accompanying  papers 1552 

2068.  Form    for    proof    of    heirship 1553 

2069.  Form  for  assignment  of  oil   and  gas  mining  lease 1558 

2070.  Form  for  the  bond ^'^^'^ 

2071.  Form   for   the  back   of  the  bond *. 1562 

2072.  Form  for  stipulation  increasing  oil  royalty  and  extending  term 

of  lease 1^02 

2073.  Form  for  stii)ulation  increasing  oil  royalty  and  extending  term 

of  lease  to  cancel  regulations  of  October  fourteen,  nineteen 
hundred   and   seven 1564 

2074.  Form  for  lessor's  consent  to  extension  of  lease 1566 


CONTENTS.  Ixxiii 

SECTION  PAGE 

2075.  Form  for  application  for  mineral  lease  other  than  oil  and  gas.  .  1568 

2076.  Form  for  coal  and  asphaltum  lease,  Nation 1571 

2076a.  Form  for  other  minerals  than  coal,  asphalt,  oil  and  gas 1577 

2077.  Form  for  agricultural  lease,  Nation 1583 

2078.  Form  for  grazing  lease, Nation 1588 

2079.  Form  for  surety  of  lease 1593 

2080.  Form  for  the  procedure  by  which  a  guardian  of  a  minor  freed- 

man   leases   lands  not   restricted,   for   oil   and   gas   mining 
purposes — The    petition 1595 

2081.  Tlie  waiver  of  notice 1596 

2082.  Form  for  the  order  authorizing  lease 1597 

2083.  Form  for  the  report  of  guardian  as  to  lease  made 1598 

2084.  The  form  for  oil  and  gas  mining  lease  made  under  order  of 

county  court 1599 

2085.  Form  for  the  order  of  court  approving  and  confirming  oil  and 

gas  lease  made  by  guardian 1603 


CHAPTER    XLII. 

FoBMS  FOB  Allotmext  Cebtieicates  and  Patext  Deeds  fbom  the  Gov- 

EBNMENT   TO    THE    MeMBEBS    OF   THE    FiVE    CIVILIZED    TbIBES. 

2086.  Form   for   allotment  certificate — Chickasaw  Nation 1606 

2087.  Form  for  homestead  certificate — Chickasaw  Nation 1608 

2088.  Form  for  allotment   certificate — Minor  Mississippi   Choctaw..  1609 

2089.  Form  for  homestead  certificate — Minor  Mississippi  Choctaw.  .  .  1610 

2090.  Form  for  allotment  certificate  of  freedman — Chickasaw  Nation  1611 

2091.  Form  for  designation  of  identified  Mississippi  Choctaw 1612 

2092.  Form  for  homestead    certificate — Choctaw   and   Chickasaw   na- 

tions      1613 

2093.  Form  for  allotment  certificate — ^Choctaw-Chickasaw  Nation..  1614 

2094.  Form  for  homestead  patent — Choctaw  and  Chickasaw  nations  1615 

2095.  Form  for  allotment  patent — Clioctaw  and  Chickasaw  nations.  .  1617 

2096.  Form  for  homestead  designation — Mississippi  Choctaw 1619 

2097.  Form  for  allotment  designation — Mississippi  Choctaw 1620 

2098.  Form  for  homestead   certificate — Mississippi   Choctaw 1622 

2099.  Form  for  allotment  certificate — ^Mississippi  Choctaw 1623 

2100.  Form  for  homestead  certificate — Minor  Mississippi  Choctaw..  1624 

2101.  Form  for  allotment  certificate — Minor  Mississippi  Choctaw...  1625 

2102.  Form  for  homestead  patent — Mississippi  Choctaw 1626 

2103.  Form  for  allotment  patent — ^Mississippi   Choctaw 1628 

2104.  Form  for  allotment  certificate — ^Choctaw  Nation 1631 

2105.  Form  for  allotment  patent — ^Choctaw  and  Chickasaw  freedmen  1632 

2106.  Form  for  certificate  of  homestead   designation — Seminole   Na- 

tion     1634 

2107.  Form  for  Seminole  deceased  allotee  certificate 1635 

2108.  Form  for  new-born  certificate — Seminole  Nation 1636 


Ixxiv  CONTENTS. 

SECTION  PAGE 

2109.  Form  for  certificate  of  homestead  allotment — Clierokee  Nation  1637 

2110.  Form  for  certificate  of  allotment — Cherokee  Nation I&3i8 

2111.  Form  for  homestead  deed — ^Cherokee  Nation 1639 

2112.  Form  for  allotment  deed — Cherokee  Nation 1640 

2113.  Form  for  certificate  of  selection  by  heirs — Creek  Nation 1642 

2114.  Form  for  homestead  certificate — Creek  Nation 1643 

2115.  Form  for  certificate  of  allotment — Creek  Nation 1644 

2116.  Form  for  allotment  certificate — ^Creek  Nation  new-born 1645 

2117.  Form  for  homestead  deed — Creek  Nation 1646 

2118.  Form  for  allotment  deed — Creek  Nation 1648 


CHAPTER    XLIII. 

Restbictioxs  on  Alienation. 

2118.  Eff'ect  of  contract  to  convey  after  removal  of  restrictions 1651 

2119.  Restrictions  on  alienation — Leases — Judgments   and   sale 1655 

21.20.     Restrictions  on  alienation — Estoppel  may  not  be  pleaded  against  1657 

2121.  Restrictions  on  alienation — Oil  and  gas  mining  lease 1660" 

2122.  Power  of  the  secretary  of  the  interior  to  make  rules  for  the 

removal  of  restrictions 1661 

2123.  Restrictions  upon  the  surplus  lands  of  Choctaw  and  Chickasaw 

nations  othan  than  freedmen L661 

2124.  Alienation  of  Creek  homesteads 1668 

2125.  Patents  of  Choctaw  and  Chickasaw  nations  are  issued,  when,  or 

operate  to  pass  title,  when 1675 

2126.  Date  of  patent  as  term  is  used  in  the  Choctaw  and  Chickasaw 

supplemental  agreement 1676 

.2127.     Alienation  of  the  homestead  of  deceased  Seminole  allotee.  .  .  .    1677 

2128.  Status    of    Choctaw-Chickasaw — Freedmen    allotments    as    to 

homesteads   prior   to   act   of   April   twenty-sixth,    nineteen 

hundred  and  six 1679 

2129.  Taxation   of   allotted   lands — Choctaws — Chickasaws — Creeks..  1681 

2130.  Do  tax  exemptions  in  patents  extend  to  subsequent  grantees.  .  .  1686 

2132.  Marriage,  divorce  and  inheritance  in  Creek  Nation 1689 

2133.  Public  highways  or  roads  for  the  Creek  Nation 1691 

2134.  Public  highways — Choctaw,  Chickasaw  and  Seminole  nations.  .  1691 

2135.  Public  highways  or   roads — Cherokee  Nation 1692 

2136.  Inalienability  of  certain  minor  lands — Creek  Nation 1692 

2137.  Law  of  Congress  authorizing  secretary  of  interior  to  give  fran- 

chise to  lay  pipes  constitutional .  .  .  .  , 1693 

2138.  Procedure   by   which    heirship,    title   or    interest   in    estate   in 

course  of  administration  is  established 1693 

2139.  Constitutional  provision  as  to  purchase  and  sale  of  real  estate  1696 

2140.  Corporation  may  own  real  estate 1697 

2141.  Time  within  whicli  corporation  to  dispose  of  certain  real  estate  1698 

2142.  Corporation  to  file  stiitement  of  lands  owned 1699 


CONTENTS.  IXXV 

SECTION  PAGE 

2143.  Graduated  land  tax — Corporations  and  persons 1699 

2144.  Departmental   regulations  and   forms   for  oil   and  gas   mining 

leases  in  the  Osage  Nation 1701 

2145.  Definition  of  certain  terms 17(>2 

2146.  Bids  for  a  lease 1703 

2147.  Execution  of  leases  and  bonds 1704 

2148.  Acreage  that  may  be  leased 1706 

2149.  Rentals  and  royalties 1707 

2150.  Payment  of  rentals  and  royalties 1708 

2151.  Operations  under  lease 1700 

2152.  Assignment  of  lease 1717 

2153.  Surrender  and  cancellation 1718 

2154.  General  provisions 1718 

2155.  Provisions  as  to  forms 1720 

2156.  Forms  for  bid  and  application  for  oil   and  gas  mining  lease, 

Osage  reservation 1721 

2157.  Form  for  oil  and  gas  mining  lease,  Osage  reservation 1723 

2158.  Form  for  bond    1732 

2159.  Form  for  affidavit  of  lessee,  proof  of  bonus,  and  no  develop- 

ment     1734 

2160.  Form  for  evidence  showing  authority  of  officer  to  execute  leases, 

bonds  and  accompanying  papers 1736 

2161.  Form  for  assignment  of  oil  and  gas  mining  leases 1737 


TABLE  OF  CASES. 


[References  are  to  sections.] 


Abbey  v.  Grimes    (44   Kan.  415,  24 

Pac.  426),  32. 
Abbott  V.  Coats   (86  N.  W.  1058),—. 
Abila    V.    Burnette    (33    Cal.    658), 

691. 
Abrams   v.   Same    (74   Kan.    88,   88 

Pac.  70),  1112. 
Abrams  v.   .Same    (74   Kan.    88,   88 

Pac.  571),  450. 
Acker  v.  Adams  (23  O.  S.  543),  93. 
Adair  v.    Forey    (105   X.   W.   714), 

18. 
Adair   v.   Forey    (105   X.   W.   714), 

33. 
Adam    v.    Johnson     (65    Pac.    GG2), 

1130. 
Adams   v.    Baldwin    (49   Kan.    781, 

31  Pac.  681),  63. 
Adams   v.    Baldwin     (49   Kan.    781, 

31  Pac.  681),  57. 
Adams  v.  De  Valley  (40  Kan.  48G), 

154. 
Adams  v.   Jeffries    (12   Ohio,   253), 

87. 
Adams  v.  Jeffries   (12  Ohio,  253),  3. 
Adams  v.   Loekwood    (2   Pac.  526), 

317. 
Adams   v.  Parnell    (11   C.   C.   567), 

1112. 
Aetna   v.    Wortasenski    (88    X.    W. 

[Xeb.]  855),  152. 
Ahlban  v.  Wolff   (11  Atl.  799),  485. 
Alabama  v.  Price  (42  Ala.  39),  836. 
Alberta  v.  Moore    (20  Okla.   78,  93 

Pac.  543),  1020. 
Alberti   v.   Moore    (20   Okla.   78,   93 

Pac.  543),  1017. 
Ixxvii 


Albers  v.  Cozeluh    (97  X.  W.  646), 

57. 
Albright  v.  Warkentin  (31  Kan.  442, 

2  Pac.  614),  64. 
Alderson  v.  Marshall    (7  Mont.  288, 

16  Pac.  676),  57. 
Alexander  v.    Frary    (9    Ind.   484), 

553. 
Alexander  v.  Frarey    (9  Ind.  484), 

73. 
Alfred  v.  Bank   (29  Pac.  471),  145. 
Allen   V.    Houston    (21    Kan.    201), 

1274. 
Allen  V.   Jewell    (94  U.   S.  606,  24 

L.  Ed.  260),  447a. 
Allen    V.    Miller     (11     0.    S.    374), 

18,  33,  4(5. 
Allen  V.  Oliver  (12  Pac.  226),  1736, 

1740,    1824,    1834. 
Allentown  v.   Derr    (115  Pa.  439,  9 

Atl.  55),  1834. 
Alleson  v.  Bryan   (21  Okla.  537,  97 

Pac.  382),  522. 
Almorev    v.    Hicks     (3    Head.    39), 

1177. 
Alton  V.   Staton    (19   Okla.  252,   91 

Pac.  892),  412,  1084. 
America,  etc.,  v.  Johnson   (17  0.  S. 

640),  46. 
American  v.  Davis    (67    S.   W.   864, 

108  Tenn.  442),   73,   356. 
American  v.  Pappe   (43  Pac.   1086), 

92. 
Ames  V.  Burnham  (108  X".  \Y.  297), 

475. 
Amos   V.   Humbolt    (21    Kan.    474), 

96. 
Anderson  v.  Canter    (63  Pac.  285), 

1138. 


lxx^'iii 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Anderson   v.   Chicago    (17    111.   26), 

1736. 
Angel    V.    Alartin     (24    Kan.    344), 

Anderson  v.  Cantor    ( 10  Kan.  App. 

167,  63  Pac.  285),  450. 
Anderson  v.  Ferguson  (12  Okla.  307, 

71  Pac.  226),  803. 
Anderson  v.  Itasca    (86  Minn.  480, 

91  N.  W.   12),  341. 
Anderson  v.  Same   (75  Kan.  117,  88 

Pac.   745),  457. 
Apple,  In  re   (66  Cal.  432),   695. 
Apperson  v.  Botton    (29  Ark.  418), 

565,  569,  587. 
Archer  v.  Lumber    (24  Ore.  341,  33 

Pac.  526),  493. 
Ard    V.    Brandon    (156   U.    S.    37), 

1763. 
Ard  V.  Wilson  ( 60  Kan.  857,  56  Pac. 

80),    1143. 
Ardmere   v.    Briggs    (20   Okla.   427, 

94  Pac.  533),  1563. 
Armour  v.  Oneck    (4  Okla.  661,  46 

Pac.  573),  29. 
Armstrong  v.  Bartin   (42  Miss.  506), 

85. 
Armstrong    v.    Brownfield     (4    Pac. 

Ii86),  1130,  11315. 
Armstrong  v.  Grant    (7  Kan.  286), 

166. 
Arm-strong  V.  Wood  (195  Fed.  137), 

1759. 
Arnold  v.  Campbell    (64  S.  W.  532, 

3  Ind.  Ter.  5.50),  10,  11. 
Ashmed  v.  Reynolds    (184  Ind.   139, 

38  N.  E.  763),  477a. 
Ashton    V.    Slaler    (19    Minn.    347), 

121. 
Askey    v.    Williams     (5    L.    R.    A. 

176),  356. 
Atchisfm    v.    l'.iirk     (96    Pac.    950), 

1292. 
Atchison  v.  Cogswell    ( —  Okla.  — , 

99  Pac.  923),  86. 
Atchison  v.  Tx)ge    (49  Kan.  524,  31 

Pac.  140),  50. 
Atchison  v.  Sledge   (68  Kan.  321,  74 

Pac.  1111),  1.^. 
Atkinson  v.   Woodmansee    (68  Kan. 
71,    74    Pac.   640),    1020,    1025, 
1026. 


Atchinson  v.  Means    (61   Kan.   857, 

58  Pac.  989),  64. 
Atchison    v.    Pracht     (30    Kan.    71, 

1  Pac.  319),   1116,   1118. 
Atchison    v.     Rockwood     (25    Kan. 

110),  1116,  1118. 
Atchison  v.  Woodman   (58  Kan.  71, 

74  Pac.  640),  1025. 
Atwood  V.  McKesa    (il5  Pac.   106), 

487. 
Aultman  v.  Caldwell   ( 14  Okla.  472, 

78  Pac.  319),  94. 
Avela    V.    Burnett     (33    Cal.    658), 

757. 
Avery   v.   Sykes    (1    W.    56),    1275. 
Ay  ward  v.  Lamarde   (29  Wis.  502), 

341. 


Babcock    v.    Camp    (12    0.    S.    11), 

89. 
Badanger  v.  Lauten   (15  Kan.  608), 

292,  296. 
Baird  v.   Ramsey    (2  C.  C.   [N.  S.] 

492),  1178. 
Bahm  v.  Mine   (63  la.  641),  92. 
Baird   v.   Prosanor    (62    Ala.   486), 

1279. 
Baker  v.  Harriet   (23  Okla.  480,  100 

Pac.  1114),  1762. 
Baldredge  v.  Outgrof  (108  Pac.  83), 

1274,   1276. 
Balduff   V.   Griswold    (9    Okla.   538, 

60  Pac.  223),  1074,  1075. 
Baldwin  v.  Bohl    (122  N.  W.  247), 

817. 
Baldwin  v.   Bush    (61   N.   W.   601), 

1292. 
Baldwin  v.  Detzel    (1  Iddings  F.  P. 

D.  138),  1178. 
Baldwin  v.  Squier    (31   Kan.  284,   1 

Pac.   591),  450. 
Baldwin  v.  Wilson    (7   N.   P.   506), 

22. 
Balke,  In  rl  (137  Cal.  429),  703. 
Ball   V.  Houston    (11    Okla.   235,   66 

Pac.  559),   1011. 
Ball  V.  Houston    (11   Okla.   233,   66 

Pac.   358),  929. 
Ballen   v.    Bergvendsen    (83    N.    W. 

10),   449. 


TABLE  OF    CASES. 


Ixxix 


[References  are  to  sections.] 


Ballew   V.   Young    (103    Pac.    624), 

60. 
Baltimore   v.    Fitzpatrick     (36    Md. 

624),    353. 
Baltimore   v.    Fitzpatrick    (36    Md. 

1624),  77. 
Bancroft     v.     Chambers    ( 10     Kan. 

275),   1274,   1277,   1278. 
Bancroft    v.     Cliambers     (10    Kan. 

275),   1180. 
Bander    v.    Bryan    (20    Kan.    369), 

1171. 
Bank  v.  Dweners    (29  Vt.  332),  43. 
Bank  v.  Hinton    (35   Kan.   577,    11 

Pac.  309),   133. 
Bank  v.   Maddox    (4  Okla.  563,   46 

Pac.   5'63),  476. 
Bank  v.  Roosa   (13  Ohio,  334),  138. 
Bank    v.    Taylor    (58   N.   W.    297), 

475. 
Bankers  Life  v.  Robins    (75  N.  W. 

585),  64. 
Bankman  v.  Knyder  (6  Blackf.  21), 

455. 
Bannester   v.    Carroll    (43   Kan.   64, 

22  Pac.  1012),  292. 
Banning    v.    Carpenter     (48    N.    Y. 

412),  121. 
Barbee  v.  Shannon   (1  Ind.  Ter.  199, 

40  S.  W.  584),  89. 
Barbour  v.  Hubbard   (54  N.  H.  539, 

20  Am.  Rep.  160),  357. 
Bard  v.   Elston    (1   Pac.  565),  955. 
Barge  v.  Haslem    (91   N.   W.   528), 

86. 
Barker  v.   Camp    (71  Am.  St.  Rep. 

186),  — . 
Barker  v.  Central  (105  K  W.  985), 

86. 
Barrington   v.   Alexander    (6    0.    S. 

LS9),  159. 
Barnard   v.   Stevens    (2   Ark.   420), 

166. 
Barneby    v.    Plummer     (45    N.     .V. 

277,)    1292. 
Barnen  v.  Dolph    (97  U.  S.  652,  24 

U  Ed.  1063),  1750. 
Barnes    v.    Stevens     ( 2    Ark.    420 ) , 

166. 
Barnes    v.    Stonebraker     (113    Pac. 

903,  28  Okla.  75),  2121. 


Barnes  v.  Stonebraker  (28  Okla.  29, 

113  Pac.  705),  1770. 
Barnett    v.    Way    (119    Pac.    418), 

1758,   1759,    1765. 
Barney    v.    Doph    (97    U.    S.    652), 

1841. 
Barney  v.  Patterson    (5   Har.   &  J. 

1204),    166. 
Barnett   v.    Schodd    (73    Kan.    414, 

91    Pac.   539),   20. 
Bartholomew  v.  Lutherean  ( 35  0.  S. 

567),   11-84. 
Bartlesville  v.  Barker  (109  Pac.  72), 

1825. 
Barto  V.  Abbe    (16  Ohio,  408),  811. 
Barton,  In  re   (86  Cah  441),  652. 
Barrington    v.    Alexander    (6    0.    S. 

180),    169. 
Barrow-s   v.   Rubber    (13   R.  I.    48), 

43. 
Barry    v.    Honey    (30    0.    S.    348), 

39. 
Barry    v.    Wochasky     (176    N.    W. 

1080),   33. 
Bass  v,  Spooner   (45  Ind.  489),  80. 
Bassell   v.   Bassett    (19    Pac.    671), 

32. 
Bashore  v.  Nordyke   (25  Kan.  222), 

148. 
Bastin    v.    Schaffer    (15    Okla.    267, 

85  Pac.  349),  388,  932,  1068. 
Baumeister     v.     Carroll      ( 22     Pac. 

1012),   29. 
Beadles    v.    Fry     (82    Pac.    1041), 

136. 
Beal    V.    Western    (74   N.    W.    54), 

94. 
Beard    v.    Hosier     (30    Ark.    515), 

561. 
Beaumont  v.  Ogden   (24  0.  S.  452), 

136. 
Beaquith  v.  Talbot    (95   U.   S.   289, 

2'4  L.  Ed.  496),  454. 
Beck    V.    Flourney     (65    Fed.    30), 

1735. 
Beck  V.  Johnson   (23  Okla.  812,  101 

Pac.   1100),   82b. 
Beck,  In  re   (110  F.  D.  449),  1009. 
Beckwith     v.     Douglass     (25     Kan. 

159),  60. 
Beckwith  v.  Douglass  (26  Kan.  229), 

806. 


Ixxx 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Beelin    v.    Schmidt    (16    Okla.    429, 

85  Pac.  711),  36. 
Beeline  v.  Taylor   (16  Okla.  481,  85 

Pac.  713),  36. 
Beer    v.    Plant     (96    N.    W.    348), 

1116. 
Beeson   v.    Patterson    (36    Pa.    34), 

1834. 
Bell  V.  Cook   (—  Okla.  — ),  1295. 
Bell    V.    Dalton     (39    N.    W.    930), 

94. 
Bell  V.  Sternberg   (53  Kan.  571,  3G 

Pac.  986),  442. 
Bel  ton    V.    Bemis     (44    0.    S.    51), 

472. 
Bemis    v.    Becker     (1     Kan.    248), 

1170. 
Bennett,  In  re   (134  Cal.  620),  682. 
Bennett  v.  Same    (15  Okla.  286,  81 

Pac.   632),  504. 
Bennison   v.    Worelty    (De   G.    Sen. 

64i8),  72. 
Benson  v.  Canfield   (89  N.  W.  664), 

801. 
Benson   v.   ]Marhoe    (37   Minn.    30), 

471. 
Benton    v.    Beakey    (81    Pac.    196), 

973. 
Berkley    v.    Mining,    etc.     (4    Colo. 

117),  92. 
Berry  v.  Same    (55  Pac.  348),  977. 
Bess    V.    Frazier     (16    Okla.    523), 

1138. 
Best    V.    Frazier     (16    Okla.    523), 

804. 
Beson   v.    Nerkve    (33    N.    W.    38), 

486. 
Bethel   v.   Bethel    (39  Kan.  230,    17 

Pac.  813),  1016. 
Bethel  v.  Chicago   (39  Kan.  230,  17 

Pac.   813),   1013. 
Betts    V.   Commissioners    (27    Okla. 

64,  110  Pac.  766),  1834. 
Betts  V.  Lilsatre    (1    S.   D.   182,   46 

N.  W.  201),  987. 
Betts  V.  Mills   (8  Okla.  351,  58  Pac. 

a57),  929. 
Betz  V.  Maxwell   (29  Pac.  147),  957. 
Beverly  v.  Fairchilds  (29  Pac.  985), 

32. 
Bigelow  V.  Pilcher    (16  Okla.  228), 

187,   1138. 


Black  V.  Drake  (28  Kan.  484),  1120, 
Blackburn   v.   Blackburn    ( 18    Ohio, 

81),  1275. 
Blackburn    v.    Memson     (118    Pac. 

402),    472. 
Blackburn    v.    Randolph     (33    Ark. 

119),  486. 
Blake  v.  Davis    (20  0.  239),    1275. 
Blake  v.  Rider    (14  Pac.  280),  301. 
Blakemore  v.  Johnson  ( 24  Okla.  544, 

103  Pac.  554),  82a,  17Ga. 
Blanchard  v.  Swartz  ( 7  Okla.  23,  54 

Pac.  304),  1016,  1020,  1055. 
Blanchell     v.     Freeze     (52     N.     W. 

1101),  813. 
Blanco    v.    Haller    (1    N.   W.    978), 

813. 
Block  V.  Pearson   (19  Okla.  422,  91 

Pac.  714),   1012. 
Blodgett    V.    Hobart    (18   Vt.   418), 

487. 
Bloomer  v.   Cramer    (14   Okla.   366, 

79  Pac.  1134),  1060. 
Blyth  V,  Ayers   (96  Cal.  532),  522. 
Board  v.  Geleno   (9  Kan.  App.  555, 

58  Pac.  277),  1017. 
Board  v.  Kansas    (19  Okla.  375,  91 

Pac.  699),  114. 
Board  v.  Moon   ( 8  Okla.  205,  57  Pac, 

161),  84. 
Bobb   V.   Alien    (149   U.   S,   481,    13 

Sup.  Ct.  950),  454. 
Boden   v.  Maier    (98  N.  W.   [Xeb.] 

701),  63. 
Bodle  V.  Shoenfelt   (22  Okla.  94,  97 

Pac.  556),  1756. 
Bodwell   V.   Heaton    (18   Pac.   901), 

485, 
P.odwell   V,   Heaton    (18   Pac.   901), 

489. 
Bogart  V.  City    (27  N.  J.  Eq.  568), 

1178. 
Bogle   V.    Bloom    (36    Kan.   512,    13 

Pac,  793),  137. 
Bogle  V,  Jarves  (58  Kan.  76,  48  Pac. 

538),*  457. 
Bolton  V.  Steel  Co,   (4  C.  C.  [Ohio] 

242),   18. 
Bonecamp    v.    Starbuck     (106    Pac. 

839),  453. 
Bond  V,   Wilson    (8  Kan,  231),  43, 

44, 


TABLE  OF   CASES. 


Ixxxi 


[References  are  to  sections.] 


Bonlin    v.    Lord     (15    0.    S.    454), 

13S3. 
Bonner  v.  Proprietors  (7  Mass.  475), 

1201. 
Bonner   v.    Sanders    (26   Okla.   673, 

110  Pac.  730),  1843. 
Booth  V.  Pendola   (88  Cal.  36),  692. 
Booth  V.  Wiley   (102  111.  84),   1177. 
Boring   v.    Jude     (53    S.    W.    763), 

73. 
Boring    v.    Jude    (53    S.    W.    763), 

353. 
Born  V.  Horston   (80  Cal.  452),  684. 
Boswell    V.    Sharp    (15    Ohio,    441), 

89. 
Boswell   V.    Sharp    (15    Ohio,    447), 

91. 
Boudinot  v.  Morris   (110  Pac.  894), 

1823. 
Boudinot  v    Same   (2  Ind.  Ter.  107, 

48  S.  W.  1019),  m. 
Bowden    v.    Pince     (73    Cal.    459), 

707. 
Bowdish  V.  Metzger    (81  Pac.  484), 

1177. 
Bowen  v.  Ledbetter   (122  Pac.  132), 

1764. 
Bowling  V.  United  States   (191  Fed. 

22),  1735. 
Bowman  v.  Overal    (80  Ala.  451,   2 

So.  2),  457. 
Boyd   V.   Munson    (76   N.   W.   552), 

94. 
Boyles  v.   Bradley    (101   Pac.  477), 

978. 
Boynton   v.   Crockett    (12   Okla.   57, 

69  Pac.  869),  86. 
Bradfield   v.    Hale    (67   0.    S.   317), 

1112. 
Bradfield  v.  Lukens  (57  Kan.  90,  45 

Pac.  69),  832,  854. 
Bradley  v.   Rogers    (33   Kan.   120), 

1171. 
Brady  v.   Sizomore    (124  Pac.  615), 

i756. 
Bragden   v.   McShea     (26    Okla.   35, 

107  Pac.  916),  82a. 
Bragdon  v.  McShea    (107   Pac.  916, 

26    Okla.   35),   2120. 
Braley   v.   Leaman    (30    Cal.    610), 

57. 


Branch  v.  Mitchell    (24  Ark.  431), 

1177. 
Brashfield   v.    Whitaker    (4   Howks, 

309),   133. 
Braun  v.  Bell   (192  Fed.  427),  1759. 
Braunner    v.     Chapman     (11     Kan. 

118),   154. 
Breckenridge    v.    Crocker    (78    Cal. 

S29,  21  Pac.  17'9),  441. 
Brendedge  v.  Beggs   (25  0.  S.  652), 

45. 
Brennan  v.  Shanks   (103  Pac.  704), 

800. 
Brenner    v.    Eggly    (23    Kan.    123), 

18,  26,  33. 
Brewer  v.  Maurer    (38   0.   S.   543), 

1057. 
Brewster     v.     Benedict      ( 14     Ohio, 

385),  561. 
Bridge   v.    Street    (9   Okla.   422,   60 

Pac.   221),   64. 
Brittain  v.  Burnham    (7  Okla.  522, 

60  Pac.  241),  507. 
Britton  v.  Larson  (37  N.  W.  [Neb.] 

681),  57,  61. 
Brook  V.  Lester   (36  Md.  67),  1014. 
Brooks  V.  Finney   (39  0.  S.  57),  — . 
Brown,  In  re    (143   Cal.  450),  680, 
Brown,  In  re   (80  Cal.  381,  32  Pac. 

233),  757. 

700. 
Brown  v.  Brown  (8  N.  H.  93),  1203. 
Brown  v.  Burdick    (25   0.   S.  260), 

811. 
Brown  v.   Campbell    (100   Cal.   635, 

35  Pac.  433),  509. 
Brown  v.  Fagins    (55  N.  W.   1048), 

810. 
Brown  v.  Ins.   (6  C.  C.  62),  1022. 
Brown   v.    International     (116    Pac. 

799),  401,  984. 
Brown    v.    Massey    (13    Okla.    670, 

76   Pac.   266),    64. 
BroATO   V.   Eener    (.59   X.   W.   360), 

84. 
Brown   v.   Vose    (75  N.  W.  536,  70 

Am.  St.  379),  292. 
Brown   v.    Ward    (110    la.    123,    81 

K  W.  247),  440. 
Brownell  v.  Same    (19  Wend.  367), 

1201. 


Ixxxii 


TABLE  OF   CASES. 


[Eeferences  are  to  sections.] 


Browton  v.  Alston  (4  W.  L.  M.  588), 

41. 
Brundege   v.   Blair    (25  Kan.  482), 

485. 
Bryan    v.    Wuburn     (43    Ark.    28), 

1177. 
Buchanan   v.    Ray    (2    0.    S.    261), 

90,  178. 
Buchanan  v.  Roy  (20  S.  253),  85. 
Burchett  v.  Clark   (64  K  W.  1113), 

160. 
Buck    V.    Davidson    (79    Pac.    119), 

806. 
Buck    V.    Gage     (43    N.    W.    110), 

lllG. 
Bucket    V.    Eagle    (21    C.    C.    229), 

46. 
Buckeye    v.    Fee     (62    0.    S.    55G), 

287. 
Buffom  V.  Buffom    (11  N.  H.  451), 

1834. 
Bull  V.  Bray   (89  Cal.  286,  26  Pac. 

873),  505. 
Bull   V.   Ford    (66   Cal.   176,  4  Pac. 

1175),  504. 
Bullner's  Estate   (59  Cal.  131),  624. 
Bulwer   v.    Standard    (83    Cal.   589, 

23  Pac.  1102),  1178. 
Bump,  In  re  { 152  Cal.  271,  92  Pac. 

642),  743. 
Bunce  v.  Gallaher   (5  Blatchf.  481), 

1177. 
Burdsal  v.  Shields    (79  Pac.   1067), 

823. 
Burford  v.  Kersey    (48  Miss.  643), 

89. 
Burge  V.   Brown    (45  N.  W.   [Neb.] 

271),  137. 
Burke    v.    Hinseman    (70    111.   App. 

496),    1296. 
Burkell  v.  Clark    (64  N.  \V.   1113), 

166. 
Burkley   v.   Superior    (102   Cal.   61, 

36  Pac.  360),   1251,   1252. 
Burnham  v.  Dixon   (5  Okla.  112,  147 

Pac.  1059),  300. 
Burnham   v.   Larkin    (36  Kan.  246, 

13   Pac.  398),  490. 
Burnhill  v.  Bradbury  (67  Kan.  762, 

74  Pac.  279),  451. 
Burnley    v.    Stephenson     (24    0.    S. 
474),  20. 


Burns  v.  Hartshorn   (12  Okla.  121, 

69  Pac.  1049),  809. 
Burris   v.    Kennedy    (108    Cal.   331, 

41   Pac.  458),   217. 
Burton  v.  Handy    (54   Kan.    13,  37 

Pac.  108),  486. 
Busby  V.  Littlefield  (31  N.  H.  193), 

483. 
Bush  V.  Bush   (33  Kan.  556,  6  Pac. 

794),  489. 
Butler  V.  Craig  (29  Kan.  205),  163. 
Butler    V.    Birkey    (13    0.    S.    616), 

18. 
Butler  V.  King   (2  Yerg.   116),  561. 
Bvers  v.  Danley  (27  Ark.  77),  1177. 
Byers   v.    Schlupe    (51    0.    S.   300), 

292. 
Byrne    v.    Ft.    Smith     (1    Ind.    Ter. 

680),  488. 


C.    &   T.    V.    Rings    (28    Pac.    110), 

93. 
Caldwell  V.  Bank   (2  Ohio,  29),  287. 
Caldwell    v.    Caldwell     (145    0.    S. 

613),  159. 
Calkins  v.  Miller   (75  X.  W.  [Xeb.] 

1108),  60. 
Calkin,  In  re    (112   Cal.  301),  619. 
Campbell  v.  Coonvodt  (22  Kan.  704) , 

810. 
Campbell  v.  Disney  (93  Ky.  417,  18 

S.  W.  1027),  1178. 
Campbell  v.  Harsh   (122  Pac.   127), 

394,  443. 
Campbell    v.    Ware     (27    Ark.    66), 

561. 
Camphor  v.  ]VLirder  (60  N.  W.  901), 

46. 
C'anady   v.   Marcy    (13   Grey,  573), 

486. 
Cann  v.  Cann   (52  N.  W.  51),  1075. 
Capital  V.  Fox   (6  Ind.  Ter.  223,  90 

S.   W.   614),   1766. 
Capital   V.   Hontoon    (35   Kan.   577, 

11   Pac.  369),   156. 
Capital  V.  Hontoon    (35  Kan.  577), 

150. 
Card  well.  In  re   (48  Cal.   137),  844. 
Carniichael  v.  Pierce   (10  Okla.  176, 

61  Pac.  583),  37,  89. 


TABLE  OF   CASES. 


Ixxxiii 


[References  are  to  sections.] 


Carnahan  v.  Gustine    (2  Okla.  399, 

37  Pac.  594),  287,  317. 
Carney    v.    Taylor     (4    Kan.    179), 

300. 
Carpenter   In   re    (94   Cal.   406,   29 

Pac.  1101),  616. 
Carpenter    v.     Carpenter     (2     Pac. 

122),  27. 
Carr  v.   Barnes    ( 1   Kan.  App.   232, 

40  Pac.   1087),  70. 
Carroll  v.  Lifford    (11  L.  Ed.  671), 

1748,  1750. 
Carter    v.    Becker     (69    Kan.    524, 

77   Pac.    264),    1143. 
Carter  v.  Day    (29  0.  S.  96),  1201, 

1202. 
Carter  v.  Missouri    (6  Okla.   11,  41 

Pac.  356),  86. 
CaBter    v.    Ruddy     (56    Fed.    542), 

1748. 
CartAvright    v.    Holcomb     (21    Okla. 

548),  620. 
Cartwright  v.  McFadden    (24   Kan. 

662),    1179. 
Carver,  In  re  ( 123  Cal.  102,  55  Pac. 

770),  757. 
Cary    v.    Kemper     (45    0.    S.    96), 

112. 
Cassaday  v.   Mims    (91   Pac.    888), 

927. 
Case   V.    Barthlow    (21    Kan.    223), 

63. 
Case  V.  Beavtregard  (101  U.  S.  688), 

>89. 
Case  V.  Steel   (8  Pac.  342),  502. 
Cassity    v.    Moore    (91    Pac.    888), 

3i7. 
Castner    v.    Walrod    (83    III.    171), 

1736. 
Castro  V.  Illes    ( T*  ±ex.  229),   121. 
Caton  V.  Crewing    (26  N.  W.  253), 

178. 
Center  v.  Lindsay  (21  Utah,  192,  60 

Pac.   559),  483. 
Cerf   V.    Phillips    (73    Cal.    145,    16 

Pac.  778),  505. 
Cerly  v.   Moran    (58    Kan.   278,    40 

Pac.   82),    157. 
Chadron  v.   Association    (63  N.   W. 

808),    179. 
Chandler  v.   Colcord    (1    Okla.   260, 

32  Pac.  330),  133. 


Chandler  v.  Neal    (46   Kan.  67,   26 

Pac.  470),   1127. 
Chandler    v.    Richardson    (65    Kan. 

152,  69  Pac.  168),  1121,  1210. 
Chaney  v.  Cooper    (16  N.  W.  471), 

94. 
Chambers   v.   King    (16   Kan.   270), 

46. 
Chambers  v.  Manufactory   (16  Kan. 

270),  43. 
Chamberlain    v.    Same     (93    N.    W. 

1021),  1291. 
Chapelle  v.  Cummins  (25  Pac.  216), 

317. 
Chaplin  v.   Holmes    (27  Ark.   414), 

1177. 
Chapman  v.  Chapman  (48  Kan.  636, 

29  Pac.  1071),  136. 
Chapman  v.  Merrill   (19  Hun,  318), 

152. 
Chapman   v.   Siler    (120   Pac.  608), 

1760,  1795. 
Chenney    v.    Harding     (32    N.    W. 

[Neb.]   64),  64. 
Cherokee   v.   Hitchcock    (187   U.   S. 

294),    1797. 
Cherokee    v.    Southern     ( 135    U.    S. 

641),    1797. 
Cherokee  v.  Trust  Funds   (117  U.S. 

288),   1797. 
Cherokee  v.  Journeycake   (155  U.  S. 

196),    1797. 
Cherokee    v.    Georgia     (5    Pet.    1), 

1735,    1797. 
Cheser  v.  Chind   ( 82  Cal.  68,  22  Pac. 

1081),   1254. 
Chicago  V.  Fretz    (51  Kan.   134,  32 

Pac.  908),  1012. 
Chicago  V.  Groves   (7  Okla.  315,  54 

Pac.  484),  52. 
Chicago  V.  Mashere    (21   Okla.  275, 

96  Pac.  630),  1025. 
Chicago   V.   Osborne    (40   Kan.    168, 

19  Pac.  656),  1012. 
Chicago    V.     Schalkof     (74    N.    W. 

650),  1116,  1142. 
Chicago  V.  Wynkoop  (85  Pac.  595), 

17. 
Childs  V.  MoChesney    (20  la.  341), 

166. 
Chiles  V.  Ferguson  (93  N.  W.  409), 

99. 


Ixxxiv 


TABLE  OF   CASES. 


[References  are  to  sections.] 


Chisholm    v.    Weise     (5    Okla.    217, 

47   Pac.   1086),   809,   817. 
Choat  V.  Trapp  (—  U.  S.  — ),  1737. 
Choctaw    Nation    v.    United    States 

(112  U.  S.   76),   1297. 
Christian  v.  Williams   (35  Mo.  App. 

297),   18. 
Christy  v.    Springs    (11    Okla.    710, 

69  Pac.  864),   154,  157. 
Church   V.   Gooden    (22   Kan.   227), 

86,    114. 
Cincinnati   v.   Busby    (51   Fed.  Rep. 

738,  19  L.  R.  A.  796),  442. 
Cites   V.   Widener    (35    0.    S.   555), 

147. 
Citizen   v.   Baird    (60  N.   W.   551), 

317. 
Citizens   v.    Judy     (146    Ind.    322), 

493. 
City  V.  Fox    (60  0.  S.  340),  22. 
City   V.   Harvey    (5    Okla.    754,    60 

Pac.  >84),  99. 
City  V.  Hill   (57  N.  W.  [Neb.]  548), 

21. 
City  V.  Jones    (44   Pac.   273),   806. 
City  V.  Kansas   (72  Pac.  238),  173. 
City  V.  West  (7  Wall.  82,  19  L.  Ed. 

42),  89. 
Clampt  V.  Bells    (39  Minn.  272,  39 

N.   W^   495),   441. 
Clapp  V.  Bromagham   (9  Cow.  561), 

1201. 

Clark  V.   Doilington    (7   S.   D.   480, 

58    Am.    St.    Rep.    855),    1178. 

Clark  V.  Town   (81  Mo.  503),  1114. 

Clark    V.    Dayton     (6    Neb.     192), 

472. 
Clark   V.    Burt    (2   Kan.   App.    407, 

42  Pac.  733),   174. 
Clark    V.    Lopez    (75    :\Iiss.    932,    23 

So.  648),  477a. 
Clark    V.    Ransom     (50    Cal.    595), 

639. 
Clay    V.    Hildebrand    (9    Pac.    466), 

148. 
Clay  V.  Hoysradt    (8  Kan.  74),  21. 
Clavpool  V.  Houston  (12  Kan.  324), 

'57,    112. 
Claypool    V.    King     (21    Kan.    434), 

"1174. 
Clayton    v.    Freel    (10   0.    S.    544), 
486. 


Clayton  v.    School    (20   Kan.    256), 

1130,   1174. 
Clements  v.  McGuire  (33  Pac.  920), 

742. 
Clements   v.    Noble    (48    0.    S.   41), 

1178. 
Cleveland    v.    Ohio     (1    Disn.    469), 

294. 
Close  V.  Wheaton    (70  Pac.    [Kan.] 

891),  20. 
Clough  V.  McDonald  (18  Kan.  114), 

34. 
Coal   Co.  V.   Bank    (55   0.   S.  233), 

139. 
Coalton   V.    Same    (85   N.   Y.   313), 

57. 
Cobb    V.    Kenefeck     (23    Okla.    440, 

100  Pac.  545),   111. 
Cobby  V.  Wright    (45  N.  W.    [Neb.] 

460),  20. 
Cobby  V.  Buchanan   (48  N.  H.  51), 

356. 
Cockrell  v.  Schmidt    (20  Okla.  297, 

94    Pac.    521),    114. 
Cockrell     v.     Armstrong     (31     Ark. 

580),  569. 
Coe  V.  Edwards    (72  N.  W.   1045), 

301. 
Coe    V.    Erb     (59    0.    S.    259),    84, 

114. 
Coe   V.   Smith    (4   Ind.   79,   38    Am. 

Dec.   618),  345. 
Cogly,  In  re    (107   Fed.   73,   5   Am. 

Bank.    Rep.    731),    374. 
Cogshall  V.  Marine  Bank    (63  0.  S. 

88),   1112. 
Coil   V.   Nix    (6   Okla.   618,   62   Pac. 

918),  300. 
Coinassi,   In  re    (107  Cal.    1),   633, 

645. 
Colbert    v.    Alfrey     (168    Fed.    231, 

93    C.    C.    A.    517),    82a. 
Colbert  v.  Alfrey    (168    Fed.   231), 

1762. 
Cole  V.  Lombard    (66   Kan.   251.  71 

Pac.  584),  46. 
Cole,  In  re    (49  Wis.  181),  016. 
Collins    V.    Snmo    (19    0.    S.    471), 

1178. 
Collins  V.  Baltimore   (7  N.  P.  270), 
39. 


TABLE   OF   CASES. 


Ixxxv 


[References  are  to  sections.] 


Colonial  v.  Foutch   (47  N.  W.  929), 

115. 
Colony  V.  Billingsly  (89  N.  W.  744), 

116. 
Comstock    V.    Kerwin     (77    N.    W. 

387),  1116. 
Commissioners  v.  Lawrence  (74  Cal. 

400,   16  Pac.   197),  58. 
Commons    v.    Monteith    (16    N.    W. 

591),  485. 
Condon  v.  Wood    (7  Kan.  App.  577, 

52  Pac.   63),    156. 

Conger    v.    Olds    (1    Okla.    232,    32 

Pac.  337),  811. 
Conell  V.   Parkinson    (59  Kan.  365, 

53  Pac.  138),  70. 

Conn  V.  Rhodes    (26  O.  S.  644),  32. 
Connell    v.    Kuykendall     (29    Kan. 

708),  981. 
Connolly    v.    Gedding     (37    N.    W. 

235),    809. 
Connor  v.   Ashley    (35   S.   E.   546), 

357. 
Connoway  v.   Gore    (22   Kan.   216), 

494,   804. 
Conrad    v.    Everich     (50    S.    480), 

84. 
Conrad  v.   Insurance    (1   Pet.   378), 

121. 
Conradt    v.    Meyers    (2    Pac.    868), 

1109. 
Conroy    v.    Perry     (26    Kan.    472), 

1016. 
Cook  V.  Dinsmore    (5  €.  C.    [Ohio] 

585),   139. 
Coombs    V.    Knox     (72    Pac.    641), 

348. 
Cooms    V.     Knox     (72    Pac.     641), 

548. 
Coolidge   V.   Burke    (69   Ark.   237), 

561. 
Cooper  V.  Nolan    (138   Cal.  248,   71 

Pac.    179),  505. 
Cooper  V.  Brinkman   (17  Pac.  157), 

1567. 
Coosbv,   In  re    (55   Cal.   574),   692. 
Cope   V.    Braden    (1    Okla.    291,    67 

Pac.  475),   810. 
Cope    V.    Cope     (137    U.    S.    6S2), 

1885. 
Corby  V.   Drew    (55   N.   J.   Eq.  387, 

36  Atl.   827),  443. 


Cordray   v.   Cordray    (19   Okla.   30, 

91   Pac.   781),   57,   60. 
Cordray  v.  Mergen    (21    Okla.   574, 

95  Pac.  761),  — . 
Core  V.   Smith    (23   Okla.   909,   102 

Pac.    104),   70. 
Corker    v.    Corker     (87    Cal.    643), 

045. 
Corlette    v.    Mutual    (60    Kan.    134, 

55  Pac.  844),  96. 
Corteleau  v.  Mobin   ioO  K.  W.  94), 

302. 
Cory    V.    Fleming    (29    O.    S.    147), 

'll78. 
Cosgrove    v.    Merz     (37    Atl.    704), 

1167. 
Costrelero  v.  United  States  (2  Black, 

17,  97  E-d.  360),  1083. 
County    V.    Davis     (34    Ark.    590), 

501. 
■County  V.  Logan    (12  Okla.  267,  20 

Pac.  378),   714. 
County  V.  Marhling    (30  Ark.   17), 

569. 
Covington  v.  Fisher    (22  Okla.  207, 

97  Pac.  615),  1083. 
Covington    v.    Saergeant    (27    0.    S. 

233),  89. 
Cowles  v.  Phoenix   (63  Kan.  883,  65 

Pac.  217),   156. 
Cox  v.  Baird   (75  Kan.  369,  89  Pac. 

671),  493. 
Cox  v.  Giles    (8  Okla.  485,  58  Pac. 

645),  '68. 
Crafts    V.    Carr     (24    R.    L    721), 

356. 
Crag  v.  Fox   (16  Ohio,  563),  149. 
Crag   V.   Fox    (16    Ohio,    503,   564), 

155. 
Crane  v.  Cameron   (71  Kan.  880,  81 

Pac.  480),  1147. 
Croft  V.  Bent   ( 8  Kan.  324 ) ,  459. 
Crane  v.    Randolph    (30   Ark.  579), 

1177. 
Crane  v.  Ford   (1  Hopk.  114),  1561. 
Crapster   v.    Taylor    (74   Kan.   771, 

87   Pac.    1138),   76,   82. 
Creditors   v.    Search    (3    W.    L.   M. 

[Ohio]  202),   145,  147. 
Creighton  v.  Goni    (37   N.  W.   76), 
120. 


Ixxxvi 


TABLE  OF    CASES. 


[References  are  to  sections.] 


Creswell   v.    Craig    (9    N.   W.    52), 

39. 
Cretchfield  v.  Klure    (30  Kan.  721, 

18  Pac.  898),  485. 
Crews  V.  Burcham    (1  Black,  352), 

1786,  1841. 
Crist  V.  Crosby    (11    Okla.   635,   69 

Pa«.  885),  88. 
Crittenden    v.    Woodruff     (11    Ark. 

83),  593. 
Cronkmite    v.    Buchanan    (59    Kan. 

641,  53  Pac.  863),  157. 
Crooks,  In  re   ( 125  Cal.  457,  58  Pac. 

89),   1254. 
Crookston    v.    Marshall     (57    Minn. 

333),  493. 
Cross  V.  Knox  (33  Kan.  725,  5  Pac. 

32),  156. 
Crozen,  In  re    (65  Cal.  332,  4   Pac. 

10.9),   742. 
Crump  V.  Baker   (18  Ves.  255),  352. 
Cruss    V.    Administrator     ( 127    111. 

231),  73,   1736. 
Crutcher    v.    Block    (19    Okla.    246, 

91  Pac.  895),  1012. 
Cumberland     v.     Padgell     (61     Atl. 

837),  483. 
Cunningham  v.  Harper   (1  W.  336), 

1275. 
Cunningham,   In  re    (52  Cal.   465), 

618. 
Cunningham    v.    Morris     ( 12    Okla. 

132,   69  Pac.   1133),  809. 
Curran    v.    Taylor     (19    Ohio,    56), 

1200. 
Curtis    V.    Parker     (29    Kan.    93), 

1212. 
Curtis    V.    Sutter     (15    Cal.    289), 

1178. 
Cully    V.    Shirk     (50    N.    S.    882), 

43. 
Culver    V.    Culver     (2    Root,    278), 

1201. 
Cyr    V.    Walker     (116    Pac.     934), 
1947. 


Dail    V.    Freeman    (92    X.    C.    351), 

121. 
Dalate  v.  Boyd    (81   Ind.   146),  — . 


Dallew   V.   Young    (103    Pac.   623), 

59. 
Dalrymple  v.  Security  (9  N.  D.  306, 

3  N.  W.  345 ) ,  535. 
Dalzel    v.    Dueber    (149    U.    S.   315, 

13  Sup.  Ct.  886,  37  L.  Ed.  749), 

434. 
Dana   v.   Hancock    (30   Burr,    616), 

453. 
Dane    v.    Derber     (28    Wis.     216), 

493. 
Danley  v.  Same    (22  Ark.  63),  593. 
Darlington    v.    Compton    (20    C.    C. 

242),  1176,  1178. 
Daugherty  v.  Porter  (18  Kan.  206), 

806. 
Davidson   v.   Gibson    (56   Fed.   Rep. 

443),  554. 
Davidson  v.  Gibson    (56  Fed.  446,  5 

C.   C.   543),    554. 
Davis,  In  re   (69  Pac.  412),  620. 
Davis'   Est.    (122   Pac.   547),    1791. 
Davis   V.    Beman    (50   N.   W.   836), 

475. 
Davis    V.    Duffie     (8    Boz.    [N.    Y.] 

617),   18. 
Davis    V.    Hill     (97    N.    W.    1023), 

86. 
Davis  V.  Houston    (16  N.  W.  820), 

56. 
Davis  V.  Screlkeld    (151   Pac.  226), 

1138. 
Davis  V.  Weber    (45  L.  R.  A.  196), 

346. 
Davis   V.    Wilson    (76    Kan.   27,   90 

Pac.   766),   58. 
Davis'  Estate   (122  Pac.  549),  1736. 
Dawson     v.     Lawrence      (13     Ohio, 

544),   1202. 
Davton    v.    Stone     (111    Mich.    346, 

'  19  N.  W.  29),  453. 
Deathrage    v.   Henderson    (43    Kan. 

684,  23  Pac.   1052),   1016. 
Debtor  V.   Holland    (57   0.   S.   505), 

1178.^ 
DeCastro  V.  DcBarry    (18  Cal.  97), 

1254. 
Decher   v.   IMason    (30   Kan.   697,    2 

Pac.   850),   452. 
Dockerman  v.  Crane    (41  Kan.   150, 
2  Pac.  167),  94. 


TABLE  OF   CASES. 


Ixxxvii 


[References  are  to  sections.] 


Deelyter  v.  Wilhite   (55  Kan.  200), 

1168. 
Deetrich   v.    Lang    ( 1 1    Kan.    636 ) , 

57. 
DeGroffenreid  v.  Iowa,  etc.   (95  Pac. 
629),    1748,    1749,    1752,    1753, 
1754,  1756,  1758,  1781. 
DeJarnette  v.  Verner  (19  Pac.  666), 

138,  139,  150. 
DeLoveaga,  In  re    (119   Cal.    651), 

661. 
Derkson   v.   Reed    (2   Handy,    159), 

138. 
Delashmut  v.  Paunt   (28  Pac.  712), 

112,    1128. 
Demming    v.    United    States     (224 

U.    S.   471),   1841. 
Dennison   v.   Foster    (9   Ohio,   130), 

1199. 
Denton  v.   Fife    (65  Kan.   1),   1121, 

1210. 
Denton    v.    Townsite     (5    Ind.    Ter. 

396,  82  S.  W    852),  1766. 
Denver  v.  Adkinson  (119  Pac.  247), 

1831. 
DePeyster   v.   Hasbrook    (11   N.   Y. 

582),  487. 
Desnoyors    v.    Dennison    (19    C.    C. 

320),    1183. 
Detwiler   v.   Swarthy    (74   Kan.   88, 

88   Pac.    141),  494. 
DeA'ine  v.  Adamson   (119  Pac.  247), 

1297. 
Devine    v.   Harrison    (1    Pac.    772), 

1749. 
Dewy    V.    Kavenaugh     (63    N.    W. 

396),  302. 
Dewy  V.  Montgomery  ( 28  Ark.  256 ) , 

569. 
Dexter  v.   Cochran    (17   Kan.  447), 

31. 
Dickens  v.   Crane    (33   Kan.   344,   6 

Pac.  630),   157. 
Dillon  V.  Cliicago  (78  N.  W.  [Xeb.] 

927),   136. 
Dillon   V.   Heller    (39   Kan.    599,    18 

Pac.   693),   56. 
Directors    v.   City    (15   0.    S.   409), 

22. 
Dodson     V.    Weightman      (49     Pac. 

390),  301. 


Doe    V.    Brown     (8    Blackf.    [Ind.] 

443),  73,  352. 
Doe  V.  Roe    (7   Ohio.  71),   1112. 
Doe  V.  Wilson  (23  How.  457),  1786, 

1844. 
Dolan  V.   Wilkerson    (48   Pac.   23), 

297. 
Dolbeer,  In  re   (149  Cal.  227),  620. 
Dole,  In  re   (147  Cal.  188),  620. 
Dolin  V.  Buchanan  (62  N.  W.  233), 

100. 
Doll  V.  Barr   (58  0.  S.  113),  138. 
Donovan,    In    re     (140    Cal.    396), 

619. 
Donovan's    Estate    (140    Cal.    390), 

617. 
Donnovin,  In  re    (140   Cal.  390,  73 

Pac.  1081),  617. 
Doolittle,  In  re   (153  Cal.  29),  615. 
Doran  v.   Daisy    (5   N.   D.    167,   64 

N.  W.   1023),  987. 
Dorsey  v.  McCartney  (12  Pac.  104), 

1286. 
Douglas  V.  Whittaker  (32  Kan.  381, 

4  Pac.  874),  804. 
Douglas    V.    Scott     (5     Ohio,     195), 

1178. 
Douglass  V.  Xuzum    (16  Kan.  515), 

1177. 
Dove  V.  Jewell    (1   Foster    [N.  H.], 

486),  76. 
Doyer   v.   Lamb    (59   Ga.   461),   43. 
Drea  v.  Carrington    (32  0.  S.  595), 

26,  33. 
Drovers  v.  Bank    (19   Okla.  302,  91 

Pac.  850),  486. 
Drovers   v.    Custar    (19    Okla.    302, 

91  Pac.  850),  309. 
Drooney  v.   Fanning    (2   Johns.  Ch. 

252),  159. 
Drown    V.    Massey    (92    Pac.    246), 

111. 
Drummond  v.   Krebs    (8  Kan.   App. 

186,  55  Pac.  478),  492. 
Duffy  V.  Raferty   (15  Kan.  9),  1126. 
Duhme  v.  Maimer    (18   C.  C.  707), 

1176,  1178. 
Dunklin    v.    Wilson    (64    A.    L.    A. 

162),  43. 
Dunlap     V.     McFarland     (25     Kan. 
488),   299. 


Ixxxviii 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Dunn  V.  Clauncli    ( 13  Okla.  577,  76 

Pac.   143),  292. 
Dunn  V.  Hazlitt   (4  O.  S.  435),   18. 
Dunn    V.    Yakesh     (69    Pac.    926), 

438. 
Dunn  V.  Haglett   (4  0.  S.  435),  33. 
Durelle  v.   Hinde    (18  C.   C.   [Ohio] 

618),   18. 
Durham    v.    Moore     (48    Kan.    135, 

W    Pac.   472),   64. 
Durousseau    v.    United     States      (6 

Cranch,    307,    3    L.    Ed.    232), 

1736. 
Dutton    V.    Hobson     (7    Kan.    196), 

43,  44. 
Dwelling  v.  Osborne   (40  Pac.  1089), 

806. 
Dwight  V.  Pomeroy    (17  Mass.  303, 

9    Am.   Dec.    148),   487. 
Dysart  v.  Enslow    (7   Okla.  386,  54 

Pac.  550),   810. 


Earl  V.  Godley  (42  Minn.  361,  44 
N.  W.  254,  7  L.  R.  A.  125,  18 
Am.  St.  517),  1947. 

Earls  V.  Earls    (27    Kan.  538),  92. 

Eastin    v.    McEvoy     (75    Kan.    515, 

89  Pac.  1048),  1011. 

Eaton  V.  Benton    (34  Beaven,  496), 

486. 
Eberville  v.  Leadville   (28  Colo.  24, 

64  Pac.  200),  450. 
Eddie  v.  LaFayette  (163  U.  S.  456), 

31. 
Eddie    v.    Moore     (23    Kan.     113), 

309. 
Edson  V.   Parsons    (155  N.   Y.   555, 

50  N.  E.  265),  445. 
Edwards,    In   re    (154    Cal.   91,    97 

Pac.  23),  718. 
Edwards  v.   Brusha    (10  Okla.   234, 

90  Pac.    727),    1112,    1113. 
Edwards  v.  Fry   (9  Kan.  417),  451. 
Egan  V.   Lunsden    (2   Disney,    168), 

292. 
Egan  V.  Lunsden   (2  Disney  [Oliio], 

108),  287. 
Eggleston    v.    Wagoner     (46    Mich. 

610,    10  N.   W.   37),   454. 


Egremont  v.  Egremont    (2   DeG.  N. 

&  G.),  72. 
Egremont  v.  Same  (2  DeG.  M.  &  G. 

730),  35. 
Elder  v.  Elder    (10  Me.  80),  487. 
Ely   V.   McLaughlin    (78    Mo.   App. 

57«),  505. 
Eldred   v.    Okmulgee    (98   Pac.   929, 

22  Okla.  742),  2119. 
Elred   v.   Okmulgee    (22    Okla.    742, 

&8   Pac.  929),   765,    17343. 
Eldredge  v.  Robinson  ( 87  Pac.  659 ) , 

176. 
Eldredge  v.   Heston    (7   C.  C.  499), 

461. 
Elemer  v.  Chicago  (105  N.  W.  987), 

32. 
Elk    V.    Wilkins     (112    U.    S.    94), 

1735. 
Elliott   V.   Leopard    (52    Cal.    355), 

340. 
Elliott  V.  Peirsol    (26  U.   S.  340,   7 

L.  Ed.  164),  87. 
Elliott   V.   Platter    (43    0.   S.    198), 

41. 
El  Reno  v.  Jennison   (50  Pac.  144), 

1020. 
Elwood  V.  Bank  (21  Pac.  673),  1563. 
Emerson  v.  Thatcher   (51   Pac.  50), 

301. 
Emmett  v.  Bropley    (42   0.  S.   82), 

1057. 
Engle   V.  White    (104  Mich.   15,   62 

N.  W.  154),  440. 
Englebert   v.   Troxel    (40  Neb.    145, 

42  Am.  St.  665),  357. 
English    V.    Williamson     (34    Kan. 

21.5,    8    Pac.   214),    152,   806. 
Ennesly    v.    Barnett     (37    la.     15), 

810. 
Enos  V.   Capps    (12  111.  257),  76. 
Epperson  v.  Nugent   (57  Miss.  45), 

356. 
Equitable    v.    Detroit     (97    N.    W. 

17),  477. 
Esisch   V.   Pmaha    (62   N.   W.    67), 

32. 
Eufala  V.  Gibson    (22  Okla.  507,  98 

Pac.  565),  1736. 
Eureka    v.    Edwards    (71    Ala.    248, 

46   Am.    Rep.    314),    82a. 
Evans  v.  Illis    (7  0.  S.  233),  45. 


TABLE   OF   CASES. 


Ixxxix 


[References  are  to  sections.] 


Excelsior,    etc.,    v.    Boyle    (26    Pac. 

408),  138. 
Express  v.  Railroad   (99  U.  S.  191, 

26   L,   Ed.   319),   439. 


Fahy   v.   Esterly    (55   N.   W.    580), 

475. 
Fair,  In  re   (132  Cal.  523),  658. 
Fairbanks  v.  Weishaus    (75  N.   W. 

865),    174. 
Fairrel  v.  Edwards    (17    Okla.  427, 

87    Pac.  900),  449. 
Fairy  v.  Davidson  (44  Kan.  377,  24 

Pac.  419),   348. 
Faller    v.    Davis     (118    Pac.    382) 

401. 
Fallow    V.    Butler     (21    Cal.    24) 

692. 
Falls    V.    Wright     (55    Ark.    5G2) 

593. 
Fame    v.    Bevens     (189    Fed.    785) 

1796. 
Farer    v.    Dean    (24   Mo.    16),    443 
Farm    v.    Detroit    (12    Mich.    445) 

483. 
Farmers  v.  Banes   (90  N.  W.  945) 

178. 
Fatzo   V.   Swathey    (111    Cal.    628) 

677. 
Faust  V.   Territory    (58   Pac.   728) 

802. 
Fawcett    v.    Hill     (118    Pac.    132) 

1766. 
Fay,  In  re  (145  Cal.  82),  607. 
Faye   v.   Fdmiston    (28   Kan.    106) 

^  21,   171. 
Fearns  v.  Young  (10  Ves.  184),  72 

93,    351,    352. 
Federal  v.  Peeves   (73  Kan.  101,  84 

Pac.    500),    55. 
Federal    Oil    Co.    v.    Western     (112 

Fed.  373),  434,  439. 
Fen   V.    Big,   etc.    (13    0.    S.    563), 

45. 
Fenton  v.  White    (4   Okla.   472,   47 

Pac.  472),    170. 
Ferguson  v.  Blackwell   (8  Okla.  489, 
58  Pac.  647),  434,  436,  454. 


Ferguson  v.   Bro'mi    ( 14  Okla.   148, 

77  Pac.  184),  1017. 
Ferguson    v.    Crawford     (70    N.    Y. 

253),  43. 
Ferguson    v.    Tuff     (8    Kan.    370), 

154. 
Fidelity    v.    Disederaus    (26    0.    S. 

314),   155. 
Field  V.   Holbrook    (6  Durer,   597), 

1177. 
Fields    V.    Maloney    (78    Mo.    172), 

1120. 
Filley  v.  Cody   (4  Colo.  117),  92. 
Fillmore   v.    Wells    (15    Pac.    643), 

73. 
Fillmore   v.   Wells    (115   Pac.   343), 

353. 
Finch    V.    Edminson    (9    Tex.   504), 

837. 
Finlev  V.  Abner   (69  S.  W.  911,  129 

Fed.    734),    1818. 
First  V.   Eastman    (77   Pac.    1043), 

504. 
First,    etc.,    v.    Rogers     (103    Pac. 

582),   977. 
First    V.    Merc.     Co.     (110    N.    W. 

1006),  09. 
First  National  v.  Farmer    (61  Kan. 

620,  60  Pac.  324),  160. 
First   V.    Gibson    (94    N.    W.   965), 

174. 
First,  etc.,  v.  Avery  (95  N.  W.  622), 

301. 
Fishburn  v.  Ferguson   (84  Va.  87,  4 

S.  E.  575),  477a. 
Fisher    v.   Haxton    (26   Kan.    155), 

311. 
Fisher  v.  Railroad   (173  N.  Y.  500, 

66  N.  E.  395),  343. 
Fitch  v.  Miller    (20  Cal.  352),  842, 

845. 
Flanders    v.    McClenethan     (24    Ta. 

486),  483. 
Fhiger    t.    Reiss     (3    Rawle,    345), 

487. 
Flannigan  v.  Continental   (34  N.  W. 

367),  100. 
Fleishman  v.  Walker   (91  111.  318), 

387. 
Flemming  v.  MoCurtain   (215  U.  S. 

56),    1777. 


Ixxxx 


TABLE   OP   CASES. 


[References  are  to  sections.] 


Fletcher  v.  Arnett  (57  N.  W.  915), 

475. 
Fletcher  v.  Pamler   (105  Pac.  500), 

442. 
Flint    V.    Dunlavy     (15    Pac.    208), 

64. 
Flint   V.  Noyes    (27   Kan.  351),   03. 
Flint     V.     Chalimpke     (99     N.     W. 

[Neb.]    825),    136. 
Flint    V.    Hubbard    (56    Pac.    446), 

348. 
Flugel  V.  Henschel   (7  N.  D.  270,  74 

N.    W.   996),   504. 
Fluker   v.    Emporia     (30    Pac.    18), 

1563. 
Fones  v.  Mann    (18   N.   W.    [Neb.] 

64),   60. 
Fong    Yen    Ting    v.    United    States 

(149  U.  S.  698,  37  L.  Ed.  905), 

1739. 
Fordick    v.    Barr     (2    O.    S.    471), 

157. 
Fore  V.  Fore  (2  N.  D.  260,  50  N.  W. 

712),   1203. 
Foreman   v.   Carter    (9    Kan.   674), 

59,    154. 
Foster  v.  Field    (13   Olda.   230,   74 

Pac.    190),    504. 
Poster  V.   Cimarron    (76  Pac.   144), 

26. 
Foute  V.   Faewman   (48  Miss.  536), 

121. 
Fox    V.    Easter    (10   Okla.    527,    62 

Pac.  283),  452. 
Fox    V.    Easter    (10    Okla.    527,    56 

Pac.   283),  455. 
Framme    v.    Groff     (42    Cal.    169), 

1075. 
Francis    v.    Wells     (4    Colo.    274), 

92. 
Franklin  v.   Merede    (50  Cal.  293), 

114. 
Frazcr   v.    Soely    (71   Kan.    169,   79 

Pac.   1081),   1.52,   153. 
Fra/Jer  v.  Stenrod  (7  la.  339),  836. 
Frederick   v.    Henderson    (7    S.   W. 

186),  485. 
Freeman  v.  Allen    (17  0.   S.  527), 

1201. 
Freemont   v.    Railway     (92    N.    W. 
131),  46. 


French    v.    Poole    (111    Pac.    488), 

163. 
Frend,  In  re   (73  Cal.  555,   15  Pac. 

135),  742. 
Frenk  v.  Rowe  (70  Cal.  296,  11  Pac. 

820),    504. 
Fritz  V.  Fritz   (16  0.  S.  218),  1203. 
Frond    V.    Bevins,     (187    Fed.    — ), 

1762. 
Fry   V.    Somers     (4   Idaho,    424,    39 

Pac.  1118),  1178. 
Fuller   V.   Wells    (42    Kan.    551,   22 

Pac.  561),   170. 
Funk   V.    Baker    (21    Okla.    402,    96 

Pac.   608),  942,   1204. 


Galbreath   v.    Same    (5    Kan.   403), 

451. 
Gallagher    v.    Connell     (36    N.    W. 

566),    818. 
Galloway    v.     Robinson     ( 19     Ark. 

396),  561. 
Galpin  v.  Page   (18  Wall.  350),  57. 
Galton    V.    Tolley     (22    Kan.    472), 

1129. 
Galusha    v.     Butterfield     (2     Scam. 

227),   92. 
Gamble  v.  Warner    (16   0.  S.  371), 

41. 
Gano  V.  Prindle  (50  Pac.  110),  964. 
Ciardner  v.  Kune    (20  Okla.  784,  95 

Pac.   242),   804. 
Gardner   v.   Hanes    (19    S.    D.    514, 

104  N.  W.  244),  505. 
Garret   v.   National    (15   Okla.   226, 

'81  Pac.  422),   1563. 
Garrett  v.  Bean   (51  Ark.  52),  560. 
(nirrctt   V.    London    (15    Okla.   226, 

81  Pac.  421),  1563. 
Garrett  v.  Struble  (57  Kan.  508,  46 

Pac.   943),    59. 
Garrett  v.  Walcutt    (25   Okla.  574, 

106  Pqc.  848),  1760,  1764. 
Garretaon  v.  Witherspoon   (15  Okla. 

473),    474. 
Garton  v.  Hudson    (8  Okla.  631,  58 

Pac.   946),    1069. 
Gates  V.  Gumbel    (53  Mich.  181,  18 

N.  W.  631),  453. 


TABLE  OP    CASES. 


Ixxxxi 


[References  are  to  sections.  J 


Gatlin   v.    Dibrell    (74   Tex.    36,    11 

S.  W.  908),  43. 
Gaudy  v.  Jolly   (53  N.  W.  650),  — . 
Gault    V.    Pyles    (19    Okla.    445,    92 

Pac.   175),  433. 
Gault  V.    Stormont    (51    Mich.    636, 

17  N.  W.  214),  454. 
Gault   V.    Pyles    (19    Okla.   445,   92 

Pac.   1761),  450. 
Gay     V.     Ballou      (21      Am.     Dee. 

158),—. 
Geil  V.  Geil    (64  Hun,  600,  66  Am. 

Dee.  773),  457. 
Gemont   v.    First    (80   N.    W.    48), 

174. 
German  v.  First  National,  etc.,    (58 

Kan.   86,  48   Pac.  592),   54. 
German  v.  Stickle    (80  N.  W.  409), 

99. 
German    v.    Wright     (6    Kan.    App. 

611,  49  Pac.  704),  29. 
Gerrin    v.    Greer     (10    Ohio,    211), 

17. 
Geter  v.  Ulerick  (113  Pac.  713),  — . 
Getts  V.  Friend  (26  Pac.  473),  1015. 
Gherkey,  hi  re    (57  Cal.  275),  620. 
Giddings  v.  Barney   (31  0.  S.  804), 

1054. 
Gidney  v.  Chappell  (110  Pac.  1105), 

478. 
Gifken  v.  Graef    (77  Ga.  340),  474. 
Giles  V.  Recanner    (14  Daley,  475), 

111. 
Gillett  V.  Romig   ( 17   Okla.  324,   87 

Pac.  325),  1055. 
Gill    V.    Haggerty    (122    Pac.    641), 

82a,  82b. 
Gill   V.  Pelky    (54   0.   S.  349),   147, 

157. 
Gilliland   v.   Sellers    (2   0.   S.  223), 

3,  87. 
Gilmore   v.   Asbury    (64   Kan.    583, 

67   Pac.  864),'  450. 
Gilmore    v.   Asbury    ( 64    Kan.    388, 

67   Pac.  864),   451. 
Gilmartin  v.  Urquart    (1   So.  897), 

485. 
Gilstrop  V.  Moore    (26  Miss.   206), 

836. 
Gladwell  v.  Hume    (18  C.  C.   843), 

461. 


Glanny  v.  Langdon    (98  U.  S.  20), 

374. 
Glass  V.  Hulburt    (102  Mass.  24,  3 

Am.  Rep.  418),  487. 
Gleason  v.  Wood   (26  Okla.  502,  114 

Pac.  703),   1297,   1735. 
Glidden  v.  Joy   (8   C.  C.   157),  294. 
Goat   V.   United   States    (224   U.   S. 

761),    1835,    1836,    1837,    1838, 

1839,   1840,  1841. 
Godard    v.    Donoha    (42    Kan.    754, 

22   Pac.   708),   — . 
Goddard  v.  Harbour    (56  Kan.  744, 

44  Pac.   1055),  43. 
Goddard  v.  Harbour    (56  Kan.  744, 

44  Pac.    1055),  43. 
Godfred  v.  Godfred    (30  0.   S.  53), 

45. 
Godfrey  v.  Iowa   (21   Okla.   293,  95 

Pac.    792),    1841. 
Godfrey   v.    Iowa    (21    Okla.    293), 

1739,    1750. 
Goff  V.  Cook    (7   Paige,  52),  352. 
GoiT  V.    Russell     (3    Kan.    212),   29, 

31. 
Goff  V.  Cook    (7   Paige,   52),   73. 
Goldsborough    v.    Hewitt     (99    Pac. 

907),    932. 
Goldtree  v.  McAllister   (86  Cal.  93, 

24  Pac.   801),  743. 
Goldtree  v.  Thompson  (78  Cal.  613), 

676. 
Gooden  v.  Buffalo    (104  S.  W.  94), 

88. 
Goodenow  v.  Curtis  (18  Mich.  298), 

493. 
Goodman  v.  Buffalo   (162  Fed.  823), 

2129. 
Goodrum  v.   Buffalo    (162  Fed.  817, 

89  C.  C.  A.  525),  1929. 
Goodwin    v.     Same    (56     Ark.    53'2, 

20    S.    W.    353),   580. 
Goodwin   v.    Same     (59    Cal.    560), 

617,  620. 
Gore  V.  Smith    (102   Pac.    114),   60. 
Goundee   v.   Northampton     (7    Barr, 

278),    1201. 
Governor  v.   Titus    (6   Paige,   347), 

487. 
Gower    v.    Stimer    (2    Whart.    75), 

487. 


Ixxxxii 


TABLE  OF   CASES. 


[References  are  to  sections.] 


Grafter  v.  Cummins    (99  U.  S.  100, 

25   L.   Ed.   366),   441. 
Granniff,  In  re   (132  Cal.  1),  671. 
Graves,  In  re   (6  Cal.  App.  716,  96 

Pae.  729),   742. 
Great,   etc.,  v.  Mosop    (17   Com.   B. 

140),  89. 
Great  v.  Chicago    (47  Kan.  672,  28 

Pac.  714),  1021. 
Grebe  v.  Jones   (18  N.  W.  81),  292, 

305. 
Greely  v.  Greely   ( 12  Okla.  659,  73 

Pac.   295),  981. 
Green    v.    Carson     (32    Pac.    380), 

752. 
Green    v.     Holmes     (9     Kan.    App. 

886,  58  Pac.   128),   1274,   1275. 
Green   v.   Kendy    (43   Mich.   279,   5 

N.  W.   297),   43. 
Green   v.   Morris    (77   N.   W.   925), 

809. 
Greenless   v.   Roach    (48   Kan.   503, 

29   Pac.  590),  451. 
Greenmeyer  v.  Coate   ( 12  Okla.  452, 

72   Pac.   377),   29. 
Greenmeyer  v.  Coate  ( 12  Okla.  452 ) , 

813. 
Greenwell   v.    Evans    (9    Okla.   359, 

60  Pac.  249),  302. 
Greer  v.  McNeal    (11   Okla.  519,  69 

Pac.   891),   89. 
Gregley  v.  Jackson    (30  Ark.  487), 

556. 
Gregory,  In  re   (133  Cal.  137),  619. 
Grewing   v.    Minnesota    (80    N.    W. 

176),    477. 
Griffith   V.   Short    (15   N.    W.   335), 

305. 
Grimes    v.    Chamberlin     (43    X.    W. 

395),  94. 
Grissom  v.  Russell   (9  N.  W.  647), 

92. 
Grizwold  v.  Plazard    (26  Fed.   135), 

485. 
Groom    v.   Wright    (121    Pac.    214), 

1736. 
Grosovosky  v.  Goldenberg  (86  N.  W. 

378),"  78,   354. 
Gross    V.    Howard     (52    Me.     192), 

836. 
Grotts   v.    Xagel    (69   X.    W.   973), 

317. 


Grouch  V.  Martin   (47  Kan.  313,  27 

Pac.  985),  57,  92. 
Grunless  v.  Roche   (48  Kan.  503,  29 

Pac.  590),  450. 
Grove   v.   Jennings    (26    Pac.    738), 

1177. 
Grumeyer  v.   Coate    (11    Okla.   452, 

72  Pac.  377),  811. 
Guaranty  v.  Bladow  (176  U.  S.  448, 

44  L.   Ed.  540),   1780. 
Guest  v.  Ramsey   (33  Pac.  17),  317. 
Guilfoile,  In  re   (86  Cal.  594),  628. 
Gulf  V.   James    (48   Fed.    Rep.   148, 

1   C.  C.  A.  53),  — . 
Gury  v.  Tannenwald  (18  Ohio,  481), 

295. 
Guss  V.   Xelson    (14   Okla.   296,   78 

Pac.   170),  477. 
Guthrie  v.  Anderson    (41  Kan.  383, 

28  Pac.  164),  450,  452. 


H 


Haas    V.    Whittier     (97    Cal.    411), 

505. 
Plackett  V.   Lathrop    (36   Kan.   661, 

14  Pac.  220),  62. 
Hagen    v.    Webb    (65    Kan.    38,    68 

Pac.    1096),    1211. 
Hager    v.    Schnidler    (29    Cal.    47), 

1177. 
Hager    v.    WykofT     (2    Okla.    580), 

954. 
Ilahnes  v.  I>ovey    (98   X.  W.  631), 

120. 
Hale   v.   Hogland    (62   Kan.    57,    61 

Pac.   314),   64. 
llalims  V.  Dovoy    (89  X.  W.   [Xeb.] 

631),  136. 
Hall   v.   Hall    (32   0.  S.   184),    1112. 
Hall  v.  Dodge   (18  Kan.  277),  1130. 
Hall    V.    Powell     (8    Okla.    276,    57 

Pac.   158),   1064. 
Hall  v.  Powell    (8  Okla.  276),  388, 

933. 
llalloway    v.    McElhenny     (17    Tex. 

651),  352. 
Halloway   v.   Mcllhanney    (17    Tex. 

657),  73. 
Halsel    V.    Renfew    (4    Okla.    67,    78 

Pac.  121),  454. 


TABLE  OP   CASES. 


Ixxxxiii 


[References  are  to  sections.] 


Halsell  V.  Renfrew  ( 14  Okla.  674,  78 

Pac.  123),  451. 
Halsey  v.  Van  Fleet  (29  Kan.  501), 

154. 
Hamacker   v.    Bank    (95    Wis.    359, 

70  N.  W.  295),  74. 
Hamilton,    In    re    (120    Cal.    421), 

621. 
Hamilton  v.  Wilson    (CI  Kan.   428, 

59  Pac.  1068),  133. 
Hamlin  v.  Wheeler   (25  S.  W.  822), 

355. 
Hammerslaugh  v.  Hackett  (30  Kan. 

57,   1   Pac.  41),  62. 
Hammerslow  v.  Hackett  ( 1  Pac.  41 ) , 

1286,  1293. 
Hammerslow   v.   Hackett    (30    Kan. 

57,  1  Pac.  41),  1060. 
Hammond  v.   Davenport    ( 16   O.   S. 

182),  88. 
Hammond   v.   Davenport    (16   0.   S. 

177),  58. 
Hancock   v.  Mutual    (24   Okla.   391, 

103  Pac.  566),  1792. 
Hancock  v.  Ury   (25  Okla.  460,  106 

Pac.  841),  1061. 
Hancocks  v.  Mutual    (24  Okla.  391, 

103  Pac.  566),  1740. 
Hannencrab  v.  Hamill    ( 10  Okla.  1, 

61  Pac.  1050),  1126. 
Hannibal    v.    Kreally    (39    Kan.    1, 

17  Pac.  324),  58. 
Harding  v.  Guaranty  (43  Pac.  385), 

297. 
Harding  v.  Guaranty  (43  Pac.  835), 

305. 
Harding  v.  Handy   (11  Wheat.  103, 

6  L.  Ed.  429),  477a. 
Harding  v.  Wheton  (2  Mason,  378), 

477a. 
Ham  V.  €ole   (20  Okla.  553,  95  Pac. 

415),  101,  102. 
Harnbeck    v.    Cincinnati    (20    0.    S. 

81),  1112. 
Harper  v.  Crawford    (18  Ohio,   13), 

1112. 
Harrel  v.  Neef  (102  Pac.  838),  152. 
Harrell    v.    Neefe    (102    Pac.    838), 

446. 
Harrell  v.  Neff  (102  Pac.  838),  460. 
Hays  V.  Bank   (W.  563),  41. 


Harris  v.  Claflin    (36  Kan.  543,   13 

Pac.  830),  92. 
Harris  v.  Claflin    (36  Kan.  543,   13 

Pac.  830),  59. 
Harris  v.   Claflin    (36  Kan.  543,   13 

Pac.    830),   57. 
Harris  v.  Claflin    (36  Kan.  543,   13 

Pac.    830),   50. 
Harris  v.  Claflin    (36  Kan.  543,   la 

Pac.  830),  59. 
Harris  v.  Same  ( 36  Barb.  88 ) ,  89. 
Harris    v.    Gale     (188    Fed.    792), 

1889. 
Harris  v.  Gale  (188  Fed.  712),  1795. 
Harris  v.  Hardredge  (162  Fed.  109), 

1762. 
Harris  v.  Lind  (29  Okla.  362),  1762. 
Harrison  v.  Andrews  (18  Kan.  537), 

154. 
Harrison  v.  Beard    (30  Kan.  532,  2 

Pac.  632),  59. 
Harrison   v.    Beard    (30    Kan.    532, 

2  Pac.  632),  57. 
Harrison  v.  Beard    (30  Kan.  532,  2 

Pac.  632),  59. 
Harrison  v.  Carbon    (14  Wyo.  246), 

18. 
Harrison  v.   Cochelm    (35   Mo.  79), 

152. 
Harrod  v.  Benke    (76  Kan.  906,  92 

Pac.  1128),  1146. 
Harrod  v.  Burke    (76  Kan.  909,  92 

Pac.   1128),  70. 
Hart  v.  Church   (26  Cal.  471),  933. 
Hart  v.  Johnson  (6  Ohio,  87),  1275. 
Hartshorn  v.   Smart    (67   Kan.  543, 

73  Pac.  73),  450. 
Harvey  v.  Coding  (109  N.  W.  220), 

165. 
Harvey    v.    Godding     (109    N.    W. 

[Neb.]    220),    136. 
Hassam  v.  Barrel    (115  Mass.  56), 

1075. 
Hathaway  v.  Davis   (32  Kan.  693), 

1012. 
Hawkins    v.    Oklahoma     ( 195    Fed. 

345),  1758. 
Hawkins  v.  Overstreet  (7  Okla.  277, 

54  Pac.  472),  lU. 
Hawkins  v.  Stevens   (97  Pac.  568), 

1743. 


Ixxxxiv 


TABLE  OF    CASES. 


tReferenees  are  to  sections.] 


Haj'den  v.  Wescote   (11  Conn.  129), 

1279. 
Hayman    v.    Beverstock     (8    C.    C. 

474),  295. 
Hayman    v.    Beverstock     (8    C.    C. 

[Ohio]    447),   287. 
Hayne    v.    Webb    (65    Kan.    38,    68 
Pac.  1096,  93  Am.  St.  Rep.  276) , 
1120. 
Haynes  v.  Hayden    (95  Mich.  347), 

619. 
Hays  V.  Barringer    (168  Fed.  220), 

712b. 
Haywood    v.    Association     (11    Pac. 

246),    1114. 
Haywood   v.   Same    (81   N.   C.   42), 

836. 
Head  v.   Daniels    (38   Kan.    1),    18. 
Head    v.    Daniels     (15    Pac.    911), 

157. 
Head  V.  Daniels    (15  Pac.  911),  60. 
Heads    t.    Simms     (29    Ind.    574), 

148. 
Hearst    v.    Sawyer    (37    Pac.    817), 

1130. 
Hearst  v.  Sawyer   ( 12  Okla.  470,  37 

Pac.  817),  1116. 
Hebissen   v.  Hatchell    (12  Okla.  29, 

69  Pac.  888),  1138. 
Heclcman    v.    United     States     (224 

U.   S.  427),    1735. 
Heckman    t.    United     States     (224 

U.  S.  434),   1797. 
Heirs    v.     Dodge     (18    Kan.    277), 

1130. 
Heliker  v.  Lincoln    (123  Pac.   198), 

1843. 
Hell  V.  Allison  (100  Pac.  651),  1169. 
Helmig  V.  Meyer  (8  N.  P.  31),  1200. 
Hempy  v.  Ransom    (33   0.  S.  312), 

93. 
Henderson  v.  Brown    (11    Okla.  41, 

65   Pac.   935),  289. 
Hendrix    v.    Fuller    (7    Kan.    332), 

33. 
Henry  Gas  Co.  v.  United  States  (191 

Fed.  133),  1820. 
Henry    v.    Same     (103    Okla.    582), 

.356. 
Henry    v.    Henry     (103    Ala.    582), 
74. 


Hentig   v.    Pifer    (28   Kan.   788,   51 

Pac.  229),   1112. 
Hentig  v.  Sperry    (38  Kan.  459,  17 

Pac.   42),   1016. 
Herbage  v.  Feme   (91  N.  W.  [Neb.] 

40'8),    136. 
Herbaiigh   v.   Vance    (5   Lea,    113), 

352. 
Herbaugh  v.  Vance   (5  Lea  [Tenn.], 

113),  73. 
Herbert  v.  Stanford    (12  Ind.  503), 

478. 
Hermon  v.   Hays    (78  N.   W.   365), 

317. 
Hesler  v.   Coldron    (116  Pac.   787), 

152. 
Hess  V.  Trig   (8  Okla.  286,  51  Pac. 

159),  1069. 
Hester  v.  Coldesee  ( 116  Pac.  [Okla.] 

787),  152. 
Hewitt     V.     Goldenberg     (29     Okla. 

667),  1175a. 
Hewitt  V.  Cox    (55  Ark.  225),  569, 

594. 
Heyl   V.   Redden    (45    Kan.   562,   26 

Pac.  2),  1274. 
Hickey   v.    Stewart    (44   U.    S.   750, 

11   L.  Ed.  814),  87. 
Higgins  V.  Parsons    (65  Cal.  280,  3 

Pac.  881),   493. 
Hildebrandt    v.    Nelson    (95    N.   W. 

1068),  70. 
Hill  V.  Stewart  (23  Kan.  397),  133. 
Hill  V.  Harding  (193  111.  77),  1736. 
Hill  V.  Mitchell  (5  Ark.  608),  592. 
Hilton  V.  Ross  (2  N.  W.  862),  302. 
Hilton  V.  Advance    (66  N.  W.  816), 

475. 
Hinton   v.    McNeal    (5    Ohio,    509), 

89. 
Hiss  V.  McCabe    (45  Md.  77),   1279. 
Hittell,  In  re    (141    Cal.   432),   682, 

689. 
Hobbs    V.    Spencer     (49    Kan.    569, 

31   Pac.  702),   1020. 
Ilobbs  V.   Spencer    (49  Kan.  569,  31 

Pac.   702),  — . 
Hockaday  v.  Drye   (7  Okla.  288,  54 

Pac.   475),  507. 
Hockaday  v.  Jones   (8  Okla.  156,  56 
Pac.   1054),  57. 


TABLE   OF    CASES. 


Ixxxxv 


[References  are  to  sections.] 


Hockeney  v.  McKee  (12  Okla.  401), 

1138. 
Hodenfelt,    hi    re    (106    Cal.    434), 

693. 
Hodges    V.    Winston     (36    Am.    St. 

241),  933. 
Hofer  V.  Same   (33  Kan.  449,  6  Pac. 

537),  1204. 
Hogg   V.    Burman    (41    0.    S.    81), 

1198. 
Hohndan  v.  Janis   (42  Kan.  758,  21 

Pac.  591),  450. 
Holcomb   V.   Dowe    (16   Kan.    378), 

451. 
Holcomb  V.  Thompson  ( 50  Kan.  598, 

32  Pac.  1091),  490. 
Holden   v.   Hoyt    (134   Mass.    181), 

474. 
Hollister   v.    Abbot    (31    N.    Hamp. 

448,    64    Am.    Dec.    342),    89. 
Hollenbeck  v.  Ess    (31   Kan.  871,   1 

Pac.  275),  1117. 
Hollenback  v.   Ess    (31   Kan.   88,    1 

Pac.  275),   1274. 
Hollenstein     v.     Conners     (9     Kan. 

437),   1563. 
Holloway   v.   American    (89    N.   W. 

382),  — . 
Holly  V.  Robinson   (16  K  W.  438), 

^1292. 
Holman,  In  re   (42  Ore.  345),   620. 
Holra  V.  Harrington  (22  Okla.  590, 

98  Pac.  443),  1060. 
Honce    v.     Scram     (85    Pac.    539), 

173. 
Hook  V.  Bixby   (13  Kan.  164),  806. 
Hooks   V.   Kennard    (28    Okla.    457, 

114   Pac.   744),    1758,    1759. 
Hop    V.    Bane     (21    Okla.    177,    93 

Pac.  765),  505. 
Hope   V.  Boneland    (21   Okla.   864), 

583. 
Hope  V.  Bourland   (21  Okla.  864,  98 

Pac.  580),  486. 
Hope   V.   Jones    (24    Cal.   90),    757. 
Horback  v.  Snively  (74  K  W.  623), 

120. 
Horner  v.   Railway    (38  Wis.   165), 

1114. 
Horner  v.  Nownce   (21  Okla.  864,  98 

Pac.  580),  486. 


Horst  V.   Lewis    (98  K   W.   1046), 

33. 
Horton    v.    Haines     (23    Okla.    878, 

102  Pac.  121),  1057. 
Horton  v.  Hames  (23  Okla.  878,  102 

Pac.  121),  32. 
Horton  v.   Hilliard    (58  Ark.   298), 

569,   583,   584. 
Horton   v.    State    (88   N.   W.    146), 

94. 
Houck   V.    Lumm    (77    N.    W.    51), 

94. 
Houghton  V.    Ball    (70   la.   314,   30 

N.   W.  577),   977. 
Houston    V.    Clark    (36    Kan.   412), 

13  Pac.  739),  88. 
Houston  V.  Same   (67  Ind.  276),  — . 
Hove  V.   Parker    (18   Okla.  '282,   90 

Pac.  15),  94. 
Howard  v.  Entrekin  (24  Kan.  429), 

164. 
Howard    v.    Farrar    (28    Okla.    490, 

114  Pac.   695),  — . 
Howard  v.  Levering  ( 8  C.  C.  [Ohio] 

614),    18. 
Howard  v.   Osceola    ( 22  Wis.  454 ) , 

341. 
Howe    V.    ISDner     (28    Kan.    441), 

121. 
Hubbard   v.   Ogden    (22  Kan.   671), 

164. 
Hubbard  v.  Jones   (61  Kan.  722,  60 

Pac.   743),   71. 
Huber  v.  Johnson  (64  Am.  St.  456), 

346. 
Hubert  v.   Wortendyke    (68   N.   W. 

350),  21. 
Huckley,  In  re   (58  Cal.  487),  1251. 
Huggins  V.  Daley    (99   Fed.  606.  40 

C.  C.  A.  12,'  48  L.  R.  A.  320), 

439. 
Hughes  V.  Housel   (50  N.  W.  1127), 

81. 
Hull   V.   Caldwell    (54  N.   W.   700), 

475. 
Humphreys   v.   Hoffman    (33    0.   S. 

395  )i  93. 
Hunnaker  t.    Bank    (95    Wis.   359, 

70  X.  W.  205),  356. 
Hunt  V.  Xalvado    (89   Cal.   636,   27 

Pac.  56),  357. 


Ixxxxvi 


TABLE  OF   CASES. 


[References  are  to  sections.] 


Hunter  v.  Stoneburner  (92  111.  75), 

43. 
Huron   v.    George    (18    Kan.    253), 

508. 
Husted    V.    Van    Ness    (158    N.    Y. 

104),  493. 
Hutchinson  v.  Hutchinson  ( 15  Ohio, 

301),   136. 
Hutchinson  v.  Meyers  ( 52  Kan.  290, 

35  Pac.  732),   111. 


Idem  V.  Finnegan   (50  N.  W.  933), 

81. 
Ikard  v.   Bean^ers    (106   Ind.   483,   7 

N.  E.  326),  477a. 
Independent  v.  Werner  (43  la.  643), 

121. 
Indian  v.  Wooten    (48  Fla.  271,  37 

So.   731),   483. 
Ingram  v.  McGraw    (3  Kan.   521), 

43. 
Insurance  v.   Rande    (2Q  N.   J.   Eq. 

389),    1014. 
Interstate  v.  BaiVd    (194  U.  S.  25), 

1885. 
lona  V.  Blair  (56  Kan.  430,  43  Pac. 

686),    156. 
Iowa  V.  Whistler    ('87  N.  W.  538), 

147. 
Irving  V.   Diamond    (23   Okla.    325, 

100  Pac.  557),  1749,  1758,  1759. 
Israel    v.    Nichols     (14    Pac.    438), 

182. 
Ives  V.  Williams    (50  Mich.  106,  15 

N.  W.  36),  955. 


Jacks  V.  Dyer    (31  Ark.  334),   593. 
Jackson  v.^King    (02  Kan.   850,   62 

Pac.   655),    165. 
Jackson  v.   Rerk    (98  N.  W.   1068), 

1128. 
Jackson  v.   Stearns    (84  Pac.   790), 

348. 
Jackson   v.   Tenny    (17   Okla.    495), 

37. 
Jackson    v.    Tliompson     (38     Wash. 

282,  80  Pac.  4.54),   1740. 
Jacobsin  v.  Lynn  (75  N.  W.  [Neb.] 

243),    17* 


Jacobsin   v.   Miller    (41   Mich.   90), 

89. 
James,    In   re    (65    Cal.    25),    703. 
James   v.    Germania     (46    C.    C.   A- 

476),  1763,  17G4. 
James   v.   Marshall    (43    Pac.   840), 

43. 
Jarrell  v.  Jarrell   (19  Okla.  467,  92 

Pac.   167),  1012. 
Jarrett  v.  Hoover    (72  N.  W.  429), 

166. 
Jarvis    v.    Sultan     (26    Pac.    416), 

1015. 
Jefferson  v.  Winkler   (26  Okla.  653, 
110   Pac.    755),    82b,   83a,   384, 
1738,    1297. 
Jeffry    v.    Graham     (61    Fed.    48), 

1114. 
Jeffry  v.  Wolf  ( 10  Okla.  312,  33  Pac. 

945),  287,   294. 
Jenks  V.  School,  etc.   (18  Kan.  356), 

69. 
Jenks  V.  McGowan  ( 9  Okla.  306,  60 

Pac.   892),  412. 
Jenkins  v.  Frazer   (64  Kan.  267,  67 

Pac.  854),  493. 
Jenkins   v.   Mosier    (22   Kan.   562), 

163. 
Jennings  v.  Bro^vn  (20  Okla.  294,  94 

Pac.  557),  1126. 
Jewell    V.    Morris     (21    Kan.    734), 

34. 
John   V.   Strause    (60   Kan.    136,   55 

Pac.  845),  70. 
John    Hancock    v.    Dick     (14    Mich. 

337,  72  N.  W.   179),  474. 
•Tohnson,  In  re  (152  Cal.  758),  620. 
Johnson,  In  re    (57  Cal.  529),  628. 
Johnson,  In  re    (57   Cal.   129),  618. 
Johnson    v.    Bannadi     (52    N.    W. 

1057),  477. 
Johnson  v.  Barteck  (76  N.  W.  878), 

317. 
Johnson  v.  Board    (12  N.  W.  237), 

345.  ' 
Johnson  v.  Brown   (74  Kan.  346,  86 

Pac.  503),  1203,  1205. 
.Tohnson  v.  Burdette    (7   Kan.  App. 

134,    53   Pac.   87),  — . 
Johnson  v.  Hardy    (61  N.  W.  624), 
1128. 


TABLE  OF   CASES. 


Ixxxxvii 


[References  are  to  sections.] 


Johnson  v.  Johnson   (30  Mo.  72,  77 

Am.  Dec.  598),  1947. 
Johnson  v.  Knight    (53  Ark.   255), 

566. 
Johnson  v.  Lindsaj'   (27  Kan.  514), 

154. 
Johnson  v.  Maj'    (68  N.  W.   1032), 

292. 
Johnson  v.  Pfeil   (9  Ves.  357),  351. 
Johnson  v.  Pfeil    (9  Wis.  357),  72. 
Johnson  v.  Rawles   (58  N.  W.  142), 

115. 
Johnson    v.    Weatherwax     (9    Kan. 

75),  302. 
Jonesi  V.  Bolles   (9  Wall.  364),  474. 
Jones  V.   Duff    (95   N.   W.    1),   348. 
Jones    V.    Lapham    (15    Kan.    540), 

1055. 
Jones  V.  McGinder    (87  A'a.  360,  12 

S.   E.   792),   477a. 
Jones    V.   Marshall    (43   Pac.    840), 

43. 
Jones    V.    Meehan     (175    U.    S.    1), 

1786,    1841. 
Jones   V.    Minoque    (29    Ark.    638), 

558. 
Jones  V.  Seawell    (13  Okla.  711,  70 

Pac.   154),   810. 
Jones    V.    Smith     (22    Mich.    360), 

1177. 
Jones  V.  Timmons    (21   0.   S.  896), 

1112. 
Jones   V.   United   States    (96   U.    S. 

24,  24  L.  Ed.  644),  442. 
Jones  V.  Warren    (134  M.  C.   390), 

493. 
Jordan    v.    Dewy    (59    N.    W.    88), 

317. 
Joyce    V.    McAvoy     (31    Cal.    274), 

1178. 
Judson  V.  Lyford    (84  Cal.  505,   24 

Pac.   286),   504,   505. 


Kahn   v.   Mahai    (115   Cal.    689,    47 

Pac.   678),   57. 
Kallen   v.   Ellison    (13   0.   S.   455), 

90,  91. 
Kansas   v.    Christianberry    (8    Kan. 

160),  1293. 


Kansas     Indians      (5     Wall.     737), 

2129. 
Kansas  v.  Sherman  (3  Okla.  204,  41 

Pac.  623),  987. 
Kansas  v.  Thatcher    (17   Kan.  92), 

50,   348. 
Kansas   v.   Walker    (22   Pac.    365), 

94. 
Kaufman,    In    re     (117    Cal.    259), 

617. 
Kearney    v.    Aspinwall     (63    X.    W\ 

[Neb.]  826),  146. 
Keen  v.  Settenback   (18  N.  W.  75), 

56. 
Keeper  v.  Yoacum  (114  Pac.  1064), 

440. 
Kellen    v.    Nebraska    (70    Kan.    83, 

78  Pac.   159),   136. 
Kelley,  In  re   (22  Cal.  379,  55  Pac. 

136),  757. 
Kelley  v.  McGuire    (17   Ark.   580), 

1787. 
Kelly  V.  McBlain  (6  Kan.  App.  523, 

50  Pac.  963),  64. 
Kelly   V.    McGuire    (15    Ark.    556), 

554,  560,  561. 
Kelly    V.    Todd     (5    Okla.    360,    49 

Pac.  353),  29. 
Kelly    V.    Vincent    (8    0.    S.    420), 

133. 
Kelly    V.    Rogers    (21    ]Minn.    146), 

ni. 

Kelly's  Estate    ( 1   Abb.  New  Cases, 

102),  836. 
Kemble  v.   Story    (108  Mass.   382), 

1753. 
Kemper  v.  Fiscal    (4  Okla.  250,  44 

Pac.   205),   294. 
Kendricks,   In   re    (130    Cal.    360), 

616. 
Kendall  v.  August    (32   Pac.   635), 

317. 
Kent  V.  Beaver   (43  Am.  Rep.  725), 

341. 
Kennedy   v.   Bogart    (7    Serj.    &   R. 

P.  A.  97),  1278. 
Kennedy  v.  Embry   (72  Tex.  387,  10 

S.  W.  «8),  478. 
Kennedy   v.    Hazleton     (128    U.    S. 

667,  9  Sup.  Ct.  202,  32  L.  Ed. 

576),  443. 


Ixxxxviii 


TABLE  OF    CASES. 


[References  are  to  sections.] 


Kennedy  v.  Northrup   (15  111.  148), 

1177. 
Kerney  v.  Harris   (3  Ind.  Ter.  487, 

58  S.  W.  507),  41. 
Kershaw   v.   Wiley    (98   Pac.    909), 

588. 
Key  V.  Ewing   (87  Pac.  297),   1081. 
Key    Kendall    v.    Clinton     (3    Kan. 

78),  813. 
Keys  V.  Lardiner    (59  Kan.  545,  55 

Pac.  758),  484 
Kid  -v.    Weifert     (11    Okla.    52,    05 

Pac.    931),    292. 
Kilgore  v.  Rich   (12  L.  R.  A.  800), 

356. 
Kill,  In  re  (72  Cal.  131),  620. 
Kilpatrick   v.    Brehmer    (62   X.    W. 

1105),   317. 
Kincaid  v.   Froy    (49   Kan.   700,  31 

Pac.  704),  03. 
King  V.  Bishop    (44  0.  S.  221),  93. 
King  V.  Carpenter    (37  Mich.  303), 

1177. 
King   V.    Hcalt     (51    Kan.    504,    32 

Pac.  1105),  1274. 
King  V.   King    (36   Ala.   207),   441. 
Kingsborough  v.  Towsley   (50  0.  S. 

450),  88,  89,  91. 
Kingsley  v.   Bagsley    (2   Kan.   App. 

23,  41  Pac.  99i),  165. 
Kinsman  v.  S|>okane  (20  Wash.  118, 

72  Am.  St.  Rep.  24),   1178. 
Kinsey  v.   Burgess    (4   N.   P.   273), 

22. 
Kirby  v.  Harrison   (2  0.  S.  320,  59 

Am.  Dec.  677),  — . 
Kirby    v.    Ventres    (30    Ark.    368), 

569. 
Kirk    V.    Boling     (20    X.    W.    928), 

1128. 
Kirk  V.  Keester  (11  Kan.  471),  174. 
Kirkpatrick    v.    Burgess    (  —   Okla. 

Kirkpatrick    v.    Burgess     (IKi    Vac. 

764),    1822. 
Kirkwood  v.  Reedy    (10  Kan.  453). 

43,   44. 
Kiser  v.  Sawyer   (4  Kan.  503),  174. 
Kittle  V.   Bellagardie    (86   Cal.   550, 

25  Pac.  555),  1178. 
Klaer   v.    Ridgeway    (86    Pa.    529). 

1834. 


Kline  t.    Camp    (49    Kan.    114,    30 

Pac.   175),   145. 
Knappen  v.  Freeman  (47  Minn.  491, 

50   X.    W.   533),   478. 
Knickerbocker  v.  De  Frust  (2  Paige, 

804),  76. 
Knight  V.  Atchison    (2  Tenn.  384), 

89. 
Knight  V.  Indian    (47  Ind.   105,   17 

Am.  Rep.  692),  439. 
Knowles  v.  Sells    (41  Kan.   171,   21 

Pac.   102),  977. 
Knox  V.  Bowersox    ( 6  C.  C.   [Ohio] 

275),   24. 
Knox  V.  Jenks    (7  Mass.  488),  836. 
Koehler  v.  Ball    (2  Kan.   160),   154, 

156. 
Koelsch  V.  Mixer   (52  0.  S.  207),  3. 
Koelsch   V.   Mixer    (52    0.   S.   207), 

85,  87. 
Koger   V.   Bonner    (45   X.   Y.   379), 

121. 
Kogle   V.  Kennedy    (119  Ala.   664), 

619. 
Kohler,  In  re  (21  Pac.  758),  620. 
Kolatcheney  v.  Galbreath   (110  Pac. 

902),  433,  439,   1115. 
Kountze  v.   Scott    (72  X.  W.   585), 

517. 
Kraner   v.  Forrester    (42   W.  L.   B. 

[Ohio]    199),    18. 
Krusclla  V.  De  Camp    (15C.  C.  494), 

114. 
Kugan,   In  re    (139   Cal.   123),  617. 
Kushaw  V.   Willing    (22   Okla.   677, 

98  Pac.  908),  412. 
Kuttor  V.   Brushart    (4  Kan.    120), 

154. 
Kyle    V.     Freley     ('81    Wis.    67,    51 

X.  W.  257),  493. 
Kyle  V.  Exchange  (76  X,  W.  [Xeb.] 

1058),  21. 


Lackey    v.    Wilson     (63    Kan.    881, 

64  Pac.  978),  64. 
Ladd,    In    re     (94    Cal.    670),    661, 

002. 
LafTerty  v.  Edwards    (17  Okla.  247, 

87   Pac.  304),  385. 
La    Master    v.    Elliott     (73    X.    W. 

925),    1503. 


TABLE   OF    CASES. 


Ixxxxix 


[References  are  to  sections.] 


Lamb  v.  Baker    (27  Okla.   739,   117 

Pac.   189),   1759. 
Lamb  v.  Boyd    (4  C.  C.  501),  1179. 
Lamb  v.  Gregory   (11   K  W.   755), 

93. 
Lamb  v.  Sherman  (28  N.  W.  [Neb.] 

319),  157. 
Lambert  v.  Sample    (25   0.  S.  36), 

41. 
Lammee  v.  Railroad  (25  Hun,  4G7), 

450. 
Lemmerville  v.   Stockton    (142   Cal. 

129,  76  Pac.  243),  505. 
Lamont   v.    Holmes    (10    W.    L.    E. 

413),  25. 
Lamont    v.    Holmes    (10   W.    L.    B. 

[Ohio]   414),  18. 
Lamott    V.    Washington     (47     Am. 

Rep.  265),  341. 
Lampkin  v.  Chesom   (10  0.  S.  451), 

93. 
Landes   v.    Brandt    (10   Howe,    384, 

13   Law  Ed.  449),    1750. 
Landnegan  -v.  Peppin    (94  Cal.  465, 

29  Pac.  771),  1178. 
Landrum  v.  Graham   (98  Pac.  432), 

1827. 
Lane   v.    Tendon    (11    Okla.   61,    65 

Pac.   926),  296. 
Langdon    v.    Blackburn     (109     Cal. 

19),   621. 
Langford,    In    re     (108    Cal.    608), 

617. 
Lannier    v.    Kelly     (10    Kan.    299), 

296. 
La    Revera   v.   La   Revera    (77    Mo. 

512),    1947. 
Larimer  v.  Clemner   (41  0.  S.  449), 

32. 
Larkmire,  In  re   (135  Cal.  28),  658. 
Larmie  v.   Schilling    (25  Kan.  92), 

165,   180. 
Larmer    v.    Kelly    (19    Kan.    299), 

292. 
Larreson  v.  Wilbur   (47  N.  W.  38), 

447. 
Larribre    v.    Larks     (23    Pac.    598), 

300. 
Larrimer   v.    Knoyle    (43   Kan.   346, 

23  Pac.  487),"^  58. 
Latham   v.    Udell    (38    Mich.    238), 

617. 


I^atour,  In  re    (140  Cal.  414),  520. 
Lathrop  v.  Bryant  (2  Bing.  [N.  C] 

735),  455. 
Laughlin  v.   Farriss    (50  Pac.  254), 

1126. 
Laughlin  v.   Peckham    (66  la.    121, 

23  N.  W.  294),  92. 
Lawrence  v.   Estes    (116  Pac.   781), 

1179. 
Lawrence    v.    Simpleman    (37    Ark. 

643),  1177. 
Lawton  v.  Gordon    (34  Cal.   36,   91 

Am.   Dec.   670),   504. 
Lawton  v.  Nicholas    ( 12   Okla.  550, 

73  Pac.  263),  34. 
Lawton  v.  Nicholas-   (12  Okla.   550, 

73  Pac.  263),  32. 
L.  Briton  v.  Cook    (107   Cal.  410), 

667. 
Leavenworth  v.  Stone   (60  Kan.  57, 

55  Pac.  346),  59. 
Leese   v.   Potter    (68   Kan.    117,   74 

Pac.   622),  450. 
Lemert   v.    Clark    (1    C.   C.    [Ohio] 

571),   155. 
Lemert    v.    Moors     (8    Kan.     143), 

1171. 
Lemon,  In  re   (92  Pac.  870),  620. 
Lengen    v.    Gates     (26    Kan.     135), 

178. 
Lenk  v.  Cambell    (104  N.  W.  940), 

1142. 
Leroy    v.    Sidell    (62    Kan.    349,    63 

Pac.    599),    52. 
Lessee  of  Darby  v.  Carson   (9  Ohio, 

149),  133. 
Lessee    v.    Dibble     (10    Ohio,    434), 

157. 
J>essee  v.  Emerech  (6  Ohio,  391),  — . 
Lessee  v.  Longw'orth  (11  Ohio,  236), 

157. 
lessee   V.    Loring    (17    0.    S.    423), 

91. 
Lessee    v.    Loring    (17    O.    S.    425), 

287. 
Lessee    v.    McCoy     (8    Ohio,     128), 

157. 
lessee    V.    McCoy     (8    Ohio,     128), 

157. 
Lessee    v.    Noelton     (1    Ohio,    278), 

155. 
Lessee  v.  Reed    (5  Ohio,  221),   137. 


TABLE   OP    CASES. 


[References  are  to  sections.] 


Lessee    v.     Saver     (2    Ohio,     110), 

1199. 
Lessee  v.  Whitman  (2  0.  S.  270) ,  90. 
Lemcock    v.   Bank    (14    Kan.    529), 

58. 
Lepp  V.  Hunt   (45  N.  W.  685),  822. 
Levenford  v.  Rogers   (25  Cal.  233), 

505. 
Lewin   V.   Hearth    (74  N.  W.   274), 

1142. 
Lewis,  In  re    (35  Pac.   237),   1563. 
Lewis   V.   Atherton    (5   Okla.  90,  47 

Pac.  617),  71. 
Lewis    V.    Clements     (95    Pac.    771, 

21  Okla.  231),  2118. 
Lieberman  v.  Douglas   ( 62  Kan.  786, 

64   Pac.   591),   57. 
Light  V.   Conover    (63   Pac.   966,   10 

Okla.    732),   2119. 
Ligon   V.   Johnson    (164   Fed.    670), 

1297,   1778. 
Limmick  v.  Ketchem  ( 17  Okla.  532, 

87  Pac.  605),  1011,  1013. 
Little  V.  Webster   (1  N.  Y.  Sup.  Ct. 

315),    485. 
Littleton  v.  Chambers   (27  la.  522), 

57. 
Livermore,   In  re    (132   Cal.   99,   84 
Am.   St.  99,  64  Pac.   133),  842. 
Livingston     v.     Cochran     (33    Ark. 

296),  569,  593. 
Loades  v.  Hood    L29  Kan.  39),  174. 
Lock  V.   Showell    iS^l    N.    W.   572), 

813. 
Logan  V.  Hale    (42   Cal.   645),   121. 
Long   V.   Adams    (71    Kan.    309,    80 

Pac.   16),   1017. 
Long  v.  Fife   (45  Kan.  271,  25  Pac. 
595,  45  Kan.  271,  25  Pac.  594, 
23   Am.   St.   Rep.   274),   59. 
Long    v.    Long    (142    N.    Y.    545), 

836. 
Ixjng   V.    Milford     (17    O.    S.    503), 

76. 
T^newolf   v.   Hitchcock    (187   N.    S. 

553),  1297. 
Lonewolf   v.   Hitchcock    (187   U.    S. 

565),   2129. 
Lonewolf   v.   Hitchcock    (187    U.   S. 
553,    23    Sup.   Ct.    216),    1735, 
1739. 


Loreg   V.  Mulford  j  17    0.   S.   484), 

112. 
Loudenback  v.  Collins  (4  0.  S.  251), 

89. 
Louis   V.    Clements     (21    Okla.    167, 

95   Pac.   796),   1181. 
Louis  V.  Omaha    (114  N.  W.   280), 

345,  348. 
Love    V.    Arnette     (109    Pac.    553), 

932. 
Lovell    V.    McGaughy     (66    N.    W. 

1085),  477. 
Jiving  V.  Illesy    (1  Cal.  27),  84. 
Lowe    V.    Fisher     (223    U.    S.    95), 

1797. 
T^we  V.  Staples  (2  Nev.  209),  1177. 
Ix)wemiller    v.     Fouser     (52    0.    S. 

123),   1178. 
Lowenstein  v.  Lexton  ( 18  Okla.  322, 

90  Pac.  410),  1138. 
Lowenstein  v.  Young  (8  Okla.  216), 

71. 
Lowry  v.  Ferd    (3  Barb.   Ch.  407), 

451. 
Tvoyd   V.    Carew    (—   L.    Eq.    C.   A. 

Abr.  260),  351. 
Loyd  V.  Carew    (—  L.  Eq.   C.  Abr. 

260),  72. 
Loytze    v.    Herschelrode    (20    0.    S. 

334),  904. 
Luck    V.    Sheper    (10   N.    W.    409), 

809. 
Lukens  v.  Aird    (6  Wall.  78,   18  L. 

Ed.   750),   505. 
Lushington  v.  Sewell    (6  Mad.   28), 

72,    351. 
Luton  V.  Cooper    (106  N.  ^^\  170), 

94. 
Lyall    v.    Sheney     (13    Pac.    815), 

1060. 
Lynch  v.  Hinkey  (13  HI.  App.  139), 

836. 
Lynn  v.  Allen    (145  Ind.  5S4),   152. 

McAllister  v.  Dooy    (5  X.  P.  274), 

295. 
IVLcAllister    v.    Hartzell     (60    0.    S. 

83),   1142. 
INIcAlHster  v.  Walker   (9  Minn.  535, 

41  N.  W.   107),  111. 


TABLE   OF    CASES. 


CI 


[References  are  to  sections.] 


McAlpine    v.    Feslewald    (57    0.    S. 

524),  91. 
MoAnarney  v.   Caughenaur    (9  Pac. 

47G),    26. 
McAuley,    In    re     (138    Cal.    432), 

66 1',   662. 
McBride    v.    Steinweden     (83    Pac. 

822),  1135,   1278. 
McBride    v.    Steinweden     (72    Kan. 

508,  83  Pac.  822),    1116,   1274. 
McBride  v.  Lathrop   (38  N.  W.  32), 

178. 
McBrien  v.   Riley   (57  N.   W.  388), 

99. 
McCabe,  In.  re    (68   Cal.  519),   62S. 
McCairy    v.    Wall     (51    Pac.    293), 

101. 
McCarty,  In  re   (58  Cal.  335),  731. 
McClung  V.  Cullison    ( 15  Okla.  402, 

82  Pac.  494),   1055. 
McClung  V.  Hohl   ( 10  Kan.  App.  93, 

61  PaiC.  507),  70. 
McClung   V.   Penny    (11    Okla.   477, 

69  Pac.  499),'  803. 
JMJcClurg   V.    Penny    (12    Okla.   303, 

70  Pac.    404)",    1112,    1289. 
McCord  V.  Bowen   (70  N.  W.  950), 

317. 
McCormick   v.   Coch    (8    Okla.    374, 

58  Pac.  626),   111. 
McCormick    v.    Cummins    (59    Neb. 

330),  18. 
McCormic  v.  Woulph   (11  S.  D.  252, 

76  N.  W.  929 ) ,  493. 
McCourtney   v.    McGavill    (23   Wis. 

622),  341. 
McCracken  v.  Flannegan  ( 127  N.  Y. 

493,  28  N.  E.  385,  24  Am.   St. 

Ilep.  481),  57. 
McCrane  v.   Creighton    (107   N.   W. 

240),  112. 
>IcCue    V.    Hecker     (51    Pac.    966), 

1011. 
McCue    V.    Oharra     (5    Redf.    356), 

352. 
McCullough  V.  Finley   (69  Kan.  705, 

77  Pac.  696),  1203. 

]VIcCune   v.   Snyder    (8    0.   S.   316), 

1009. 
McDevit,  In  re  (95  Cal.  33,  30  Pac. 

101),   616,   617. 


:\rcDevitt,  In  re  (95  Cal.  17),  620. 
McDevitt,  In  re  (95  Cal.  26),  619. 
McDonald  v.  McElroy  (60  Cal.  484), 

692. 
:\rcDonald,  In  re  (18  Cal.  277),  720. 
McDonald  v.   Cooper    (32  Fed.  Rep. 

745),    57. 
McDonald  v.  Hoover   ( 142  Mo.  484, 

44  S.  W.  334),  505. 
McDonald  v.  McElroy  (60  Cal.  484), 

217. 
McDonald   v.    McQuart    (73    N.    W. 

288),  317. 
McDonald    v.    Stiles    (7    Okla.    327, 

54    Pac.    487),    809. 
McDonald  v.   Stites    (54  Pac.  484), 

803. 
McDonnell  v.  Steel    (87  Ala.  493,  6 

So.  288),  505. 
McFarland  v.  Grober   (70  Ark.  371), 

554. 
McFarland  v.  Nets   (4  W.  B.  1064), 

295. 
McGonigal     v.     Gordon     (11     Kan. 

168),   309. 
McGreal  v.  Taylor   (167  U.  S.  68S), 

82a. 
McHarry  V.  Eatman  (116  Pac.  935), 

1148. 
McKay,  In  re    (107   Cal.  303),  691. 
M«Kebben  v.  Newell    (41   111.  461), 

1278. 
McKee  v.  Cobalt    (71   Kan.  772,  81 

Pac.   475),   64. 
McKee    v.    Hunt     (77    Pac.    1104), 

356. 
McKee  v.  Sewall    (16  N.  W.    [Neb.] 

827),  21. 
McKeenon  v.  Pentacost  (8  Okla.  117, 

56  Pac.   958),    1562. 
]\IcKelvey   v.    Same    (75    Kan.    325, 

89  Pac.  663),  1112. 
McKennon  v.  Nixon    (128  Ala.  612, 

29  So.  690),  450. 
McKibben  v.  Day    (98  N.  W.  845), 

18. 
McKibben  v.  Day    (98  N.  W.  844), 

33. 
McKinney,  In  re   (112  Cal.  447,  44 

Pac.   743),   743. 
:\rcKinney  v.  Pursell  (28  Kan.  446), 

309. 


!cii 


TABLE   OF    CASES. 


[References  are  to  sections.] 


McKune,   In  re    (143    Cal.   580,   77 

Pac.  461),  616. 
]McLain  v.  Jones    (60  Kan.  639,  57 

Pac.  335),  809. 
McLane   v.   Webster    (26   Pac    10), 

1283. 
McLaughlin   v.   Houston    (120   Pac. 

659),  152. 
McLean   v.  Kelly    (11   Okla.   26,   66 

Pac.  282),   152. 
McLean  v.  Placerville  (66  Cal.  606), 

1561. 
McLean  v.  Swofford    (11   Okla.  429, 

68  Pac.  502),   154. 
McMillen  v.  Robbing   (5   Ohio,  28), 

1112. 
McMuck    V.    Northwest     (23    Okhv. 

386,    100    Pac.    524),    475. 
McNeal    v.    Eddie    (24    Kan.    109), 

43. 
McNeal    v.    E-ddy     (24    Kan.    108), 

43,   92. 
McNee  v.  Sewell    (16  N.   W.   824), 

170. 
McNutt   V.   Mellins    (82    Kan.    424, 

108  Pac.  434),  442. 
McQuestion    v.    Walton     (12    Okhi. 

130,  69  Pac.   1038),  809. 
McVeigh  v.  Ritnor    (40  0.  S.  107), 

1112. 
McWilliams  v.  Livingston   (22  Okla. 

864,  98  Pac.  914),    1750. 
McWhirter  v.  Roberts  (40  Ark.  283) , 
569,  593. 


M 


Mackee  v.  Purcell   ( 1  Ind.  Ter.  288, 

37   S.   W.  55),   88. 
Mackey    v.    Coxe     (18    How.     100), 

1797. 
Magnus   v.    Arnold    (31   Ark.    103), 

561. 
Miiguinn  v.  Stadel    (92   Pac.   1093), 

979. 
Maholm  v.  Marshall   (29  0.  S.  616), 

18. 
Maholm  v.  Marshall  (29  O.  S.  Oil), 

45. 
Mahoney,    In    re     ( 34    Hun,    506 ) , 

736. 


Mahoning's  Bank's  Appeal    (32  Pa. 

St.   160),  84. 
M.  K.,  etc.,  V.  Thompson    (24  Kan. 

170),   442. 
Malone  v.  Minnesota  (36  Minn.  335, 

31  N.  W.  170),  111. 
Manfue  v.  Graham   (76  N.  W.  19), 

112. 
Manful  V.  Graham    (76  N.  W.   19), 

164. 
Mansfield  v.  Gregory   (11  Neb.  295), 

121. 
]\Ianwickv.  Wolf  (3  W.  L.  B.  458), 

45. 
Marsh  v.  Davis   (6  Pac.  612),  1292. 
Marsh    v.    Marsh     (4    Air.    [Ohio] 

25),    7'6. 
Marsh  v.  Reed   (10  O.  S.  47),  1184. 
Marshall  v.  Homer  (13  Okla.  264,  76 

Pac.  368),  486. 
Martin,  In  re    (132  Cal.  661),  663. 
Martin  v.  Allen   (74  Pac.  249),  973. 
Martin  v.  Burns   (54  Kan.  641),  39 

Pac.  177),  1016. 
Martin  v.  Hannesky   (65  Pac.  637), 

955. 
Martin  v.  Harrington    (73  Vt.   193, 

87  Am.   St.  704),  933. 
Martinovitch  v.  ]\Iarsikano  ( 137  Cal. 

354,  70  Pac.   459),   1254. 
Maryland  v.  Bank  (107  N.  W.  662), 

100. 
jNLison  V.  Alexander   (44  O.  S.  334), 

93. 
Mason  v.  Westall    (88   Cal.  296,  26 

Pac.   213),    504. 
jNlassey  v.  Matthews  (12  Ohio,  362), 

76. 
Maston    v.    Gray     (19    Kan.    458), 

43. 
INIatthews,    In    re    (27    Hun,    254), 

352. 
IMatthews   v.     Tliompson     (3     Ohio, 

272),  147. 
Mattis  ^^  Baldwin   (28  N.  W.  325), 

1128. 
Mattson  v.  Swanson    (5   S.  D.   191, 

58  N.  W.   570),   837. 
IVIaxwell,    In   re    (74    Cal.    384,    16 

Pac.  206),  744. 
:\raxwell    V.    Kansas     (75    Kan.    56, 
38  Pac.  523),  1203. 


TABLE  OF  CASES. 


cm 


[References  are  to  sections.] 


Mayer    v.    Wick     (15    0.    S.    548), 

155. 
Meade  v.   McGraw    (19   0.   S.   55), 

93. 
Means  v.   Doiul    (128   U.   S.   273,   9 

Sup.  Ct.  65),  505. 
Meconce   v.   Mower    (15    Pac.    155), 

1294. 
Medditaton   v.   Westomey    (7   C.   C. 

268),   1275. 
Meecher    v.    Scliluter     (98    N.    W. 

1082),  81. 
Megreedy  v.  Macklin    (73  Pac.  293, 

22   Okla.   666),   2121. 
Menefee   v.    Same    (8   Ark.   9),   592. 
Mercer    v.    Ivit    (127    Cal.    134,    39 

Pac.   393),  505. 
Mercer    v.    Justice    (65    Pac.    219), 

1169,    1170. 
Merchant  v.   Coplan    (1   Kan.  App. 

599),  508. 
Merchant     v.    Danford      (28     Kan. 

512),  317. 
Merdruke  v.  Rauke   (82  N.  E.  119), 

348. 
Meredith  v.  Simpson  (22  Kan.  416), 

1663. 
Mertz  V.   Hubbard    (75   Kan.    1,   88 

Pac.  529),  441. 
Metz   V.   Nennitter    (122   N.   Y.   49, 

25  N.  E.   1044),  441. 
Meyer    v.    Bank     (55    0.    S.    447), 

138. 
Meyer   v.   Brown    (46  Kan.   543,  26 

Pac.    1019),    1012. 
Meyer  v.  Elevator    (128   S.   D.   172, 

"  80  X.  W.  189),  987. 
Myer    v.    Moben     (58    Pac.    1011), 

317. 
Middleditch  v.  Williams    (45   N.  J. 

Eq.  34,  17  Atl.  26),  616. 
Midland   v.    Turner    (179   Fed.    74), 

2119. 
Mifflin    V.    Stalker     (4    Kan.    242), 

100. 
Miles    V.    Parks     (49    0.    S.    [Ohio] 

370),  155. 
Miller,  In  re  (147  Cal.  583),  619. 
Miller  v.  Cincinnati   (5  C.  C.  583), 

1178. 
Miller  v.  Hassman    (103  Pac.  577), 

942. 


Miller   v.   Hassman    (24   Okla.   381, 

103  Pac.  577),  1204. 
Miller  v.  Jersey    (66  K  J.  Eq.    11, 

57  Atl.   730),  341. 
Miller  v.   Loving    (59  Kan.  485,  53 

Pac.  476),  146. 
Miller    v.    Meman     (27    Ark.    233), 

1173. 
Mlliken  v.  Booth    (4  Okla.  713,  46 

Pac.  489),  99. 
Milliken    v.     Lockwood     (103     Pac. 

124),    973. 
Mills  V.  Dixon   (42  Pac.  1014),  311. 
]\Iills    V.    Ralston     (10    Kan.    160), 

164. 
Milson  V.  Rouk   (57  0.  S.  422),  133. 
:\Iimmick  v.  Matchett  ( 10  Kan.  App. 

170),  18. 
Miner   v.    Wallace     (10    Ohio,    403), 

136. 
Missick  v.  Wigent   (56  N.  W.  493), 

i815. 
Missouri   v.    Crowe    (9    Kan.    339), 

52. 
Mitchell,  In  re   (102  Cal.  202),  679. 
Mitchell    v.    Bell     (120    Pac.    560), 

1828,  1829. 
Mitchell  V.  Dunlap    (10  Ohio,   117), 

159. 
Mitchell   V.   Lyons    (36   Kan.    378), 

1116. 
Mitchell  V.   Penfield    (8   Kan.    186), 

1014. 
Mitchell  V.  Skinner    (17  Kan.  563), 

508. 
Mix    V.    Gelmer    (5    Okla.    740,    50 

Pac.  131),  32. 
Moale   V.   Buchanan    (11    Gill   &   J. 

314),  487. 
]SIock    V.    Pleasant     (34    Ark.    63), 

583. 
MofiTit    V.    Boydson     (46    Pac.    24), 

317. 
jNIoffit    V.    Clark    (6    Wats.    &    Serg. 

260),   560. 
Moffit    V.    Garrett    (100   Pac.    533), 

309. 
Mohlin  V.  Ice    (56  Fed.  Rep.    12,  5 

C.  C.  A.  403),  89. 
Moline  v.   Custer    (57  N.  W.   160), 

317. 


CIV 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Monday  v.  Vail    (43  N.  J.  L.  — ), 

87. 
Monday  v.  Vail    (33  N.  J.  L.  418), 

85. 
Monday     v.     Vail      (43     N.    Y.    L. 

418), 3. 
Monson  v.  May  (19  Kan.  466),  508. 
Mooney   v.    Olesan    (21    Kan     496), 

1117. 
Moore  v.  Chicago  (7  Kan.  App.  142, 

53  Pac.  775),  450. 
Moore  v.   Earl    (91   Cal.   632),   621. 
Moore  v.  Munn    (69   III.  591),  483. 
Moore  v.  Odell    (27   Okla.   194,    111 

Pac.    358),    1767. 
Moore   -v.    Ogden     (35    0.    S.    430), 

136. 
Moore  v.   Parker    (80   N.  W.   572), 

813. 
Moore  v.  Pye    (10  Kan.   247),   149. 
Moore  v.  Starks    ( 1  0.  S.  369 ) ,  87, 

90,  91. 
Moore  v.  Starks  (1  0.  S.  371),  76. 
Moore  v.  Starks  ( 1  O.  S.  369).  3,  81. 
Moore  v.  Starks  ( 1  0.  S.  372),  81. 
Moore  v.  Wade  (8  Kan.  380),  1075. 
Moore    v.    Wallace     (16    Okla.    114, 

82   Pac.  825),   1182. 
Moorehead    v.    Robinson     (75    Pac. 

503),  1120. 
Moores  v.  Claskamas    (40  Ore.  536, 

67  Pac.  662),   1178. 
Moores  v.  Psyche   (62  N.  W.  1072), 

178. 
Moral   v.   Craves    (77   Cal.   218,    19 

Pac.  489),  504. 
Moral    V.    Meneffee     (5    Ark.    629), 

592. 
Moran    v.    Moran     (38    Pac.    268), 

958. 
Moran  V.  Same   (38  Pac.  268),  11. H8. 
Morfew  v.   San   Francisco   Co.    (107 

Cal.  587),  705. 
Morgan  v.  Hays   (10  W.  L.  G.  83), 

295. 
Morgan  v.  McGhee   (5  Humph.  13), 

1947. 
Morgan    v.    Murth     (60    Mich.    238, 

27  N.  W.  509),  483. 
Morley   v.    FewcU    (122   Pac.    700), 

1756,   1758. 


Morris  v.  Sinton   ( 104  N".  W.  [Neb.] 

927),   17. 
Morris   v.   Tracy    (58   Kan.   137,  48 

Pac.   571),    60. 
Morris  v.  Tracy    (58   Kan.    137,   48 

Pac.  571),  1222. 
Morrison  v.  Collier    (79   Ind.  417), 

487. 
Morrison   v.    Knight    (7    Okla.    419, 

54   Pac.    656),   86. 
Morse  v.   Hinkle    (124  Cal.   154,  56 

Pac.  '896),  356. 
Mortgage  v.  Norris    ( 54  Pac.   283 ) , 

317. 
Mortgage  v.   Weyerhouser    (29  Pac. 

153),    1014. 
Morton  v.  Sterritt  (4  W.  L.  G.  132), 

215. 
Moser   v.    Clapp    (44   Kan.   450,   24 

Pac.    951),    1274. 
Mosier  v.  Manson    (3   Okla.   41,    74 

Pac.   905),   400. 
Mosier  v.  Momson   (13  Okla.  41,  74 

Pac.  905),   1178. 
Mosier  v.  Walter   (17  Okla.  305,  87 

Pac.   877),   473,   474. 
Mosier  v.  Walter   ( 17  Okla.  305,  87 

Pac.  877),  478. 
jMosley  v.    Southern    (4    Okla.    492, 

46  Pac.   508),  315. 
INlott,  In  re   (136  Cal.  558),  620. 
Motz,    In    re    (136    Cal.    558),  617. 
Moyer  v.  Riggs    (8  Kan.  App.  234, 

"  55  Pac.  494),  174. 
Mullen,  In  re    (110  Cal.  252),  628. 
:\rullen  V.  United  States   (224  U.  S. 

448),    1776,    1844. 
IMullin,   In   re    (48    Cal.    165),    671. 
INIulvane  v.   Chicago    (56   Kan.  615, 

44  Pac.  613),   1012. 
IMunson  v.  Washburn  (31  Conn.  303, 

83  Am.  Dec.  151),  356. 
^Minison  V.  Washburn    (83  Am.  Dec. 

151),  355. 
:\Iurphyr/n  re   (104  Cal.  554),  661. 
Murphy    V.    Lucas     (2    Okla.    255), 

811. 
:Murphy    v.    Rooney     (45    Cal.    78), 

487. 
IVlurphy   v.    Sears    (11    Ore.    127,   4 

Pac.  471),  1178. 


TABLE  OF  CASES. 


ey 


[References  are  to  sections.] 


Muskogee  v.  Mullins  (165  Fed.  179, 
91   C.  C.  A.  213),  212a. 

Myer  v.  Keefer  (78  N.  W.  506), 
317. 

Myers  v.  Mattheas  (2  Ind.  Ter.  3, 
46   S.  W.    178),    1116. 


N 


Xagel    V.    Schilling    (14    Mo.    App. 

516),  73,  352. 
Names  v.  Names    (67  N.  W.   751), 

1128. 
National    v.    Hutchinson     (6     Kan. 

App.   673,   50   Pac.   100),   1015. 
National    v.    Proctor     (91    N.    W. 

[Neb.]    525),    145. 
Neal   V.   Le   Breton    (14   Okla.   538, 

28  Pac.  168),  120. 
Neal   V.   Reynolds    (38    Kan.   42,    16 

Pac.  985),  56. 
Neal    V.    Robertson    (55    Ark.    79), 

594. 
Nebraska    v.    Fewering      (72     Neb. 

1003),  317. 
Nebraska    v.    Marshall     (7    N.    W. 

[Neb.]    63),    145. 
Xeedles   v.    Frost    (2    Okla.    19,   35 

Pac.  574),   133. 
\eedles   v.    Frost    (2    Okla.    19,   35 

Pac.  74),  84. 
Neil  V.  Reynolds    (38  Kan.  432,   16 

Pac.  785),  33. 
.Veisrath,  In  re   (66  Cal.  330),  696. 
>^elson,  In  re  (132  Cal.  182),  615. 
Nelson  v.  Brusha   (92  N.  W.  1057), 

1142. 
Nelson  v.  Keystone   (70  Kan.  43,  74 

Pac.   269),    136. 
Nelson  v.  Ware    (47  Pac.  540),  958, 

962. 
Nelson  v.  Ware    (47  Pac.  640),  955. 
Neutza    v.   Hunter    (19    Kan.    291), 

806. 
New   V.    Collins    (21    Okla.    430,    96 

Pac.  607),  804. 
Newberry  v.  Railway  (35  Pac.  210), 

33. 
Newell  V.  Wagoner    ( 1  N.  D.  62,  42 

N.  W.  104),  505. 
Newforth  v.  Hall   ( 6  Kan.  App.  902, 

57  Pac.  513),  438. 


New   Jersey  v.   Wilson    (7   Cranch, 

164),   2129. 
Newkirk  v.   Marshall    (35   Kan.  77, 

10  Pac.  51),  451. 
Newkirk  v.  Marshall    (35  Kan.  77, 

10  Pac.  571),  450. 
Newman  v.  Brown    (27   Kan.   117), 

1016. 
Newton  v.  Lyon   (7  Kan.  App.  811), 

457. 
Nicholas   v.   Purezelle    (21   la.   256, 

89  Am.  Dec.  572),  1204. 
Nivens   v.    Nivens     (64    S.    W.    604, 

76    S.    W.    114,    113    Fed.    39), 

1818. 
Nixon   V,   Cydon    (56  Kan.   298,   43 

Pac.  236),  — . 
Noceker  v.  Same    (66  Kan.  347,  71 

Pac.  815),  1213. 
Nolzert    v.    Milford    (5    Kan.    App. 

222),   156. 
North  V.  Ackerly    (171   111.    100,  49 

N.  E.  22),  341. 
North    V.    Hegener    (42    Pac.    388), 

1016. 
North  V.   Lauer    (84  Am.  St.  635), 

933. 
North     V.    Moors     (18    Kan.     143), 

1171. 
Northrup  v.  Cooper   (23  Kan.  432), 

149,    152. 
Northwest  v.   McCarroU    (118   Pac. 

352),  929. 
Norton    v.    Beaver     (5    Ohio,    178), 

136. 
Norton   v.    Reardon    (67    Kail.   302, 

72  Pac.  861,   101   Am.  St.  Rep. 

459),   133. 
Norton  -v.   Reardon    (72  Pac.   861), 

166,   177. 


O'Brien    v.    Bugsby     (46    Kan.    1), 

1116. 
O'Brien    v.    Welty     (14    Tex.    148), 

933. 
O'Brien  v.  Wetherall  (14  Kan.  622), 

1116,  1137. 
O'Brien  v.  Wetherall   (14  Kan.  616), 

1114. 
Ockendon   v.    Barnes    (43    la.    615), 

472. 


CVl 


TABLE   OP    CASES. 


[References  are  to  sections.] 


Ogden   V.   Walters    (12   Kan.   283), 

1G3. 
Ogden   V.    Walters    (12   Kan.   282), 

58. 
Oglesby  v.  Williams    (112   Ga.  359, 

37    S.    E.    372),    441. 
Ohio    V.    Goodin     (10    0.    S.    566), 

155. 
Oklahoma  City  v.  Hill  (4  Okla.  521, 

46  Pac.  568),   810. 
Oklahoma  City  v.  Hill  (4  Okla.  521, 

50  Pac.  242),  817. 
Oklahoma  City  v.  Hill  (4  Okla.  521, 

46   Pac.  568),  804,   869. 
O'Krefe   v.   Holran    (85   Pac.    555), 

1138. 
Olds   V.   Bebedict    (41    N.   W.   254), 

317. 
Olds  y.    Congar     (1    Okla.    231,    52 

Pac.  337),   809. 
Oliver    v.    Clifton     (39    Ark.    187), 

483. 
Oliver    v.    Vance     (34     Ark.    567), 

554. 
Oliver  v.  Vance   (34  Ark.  564),  561. 
Olmstead,  In  re    (120   Cal.  447,   52 

Pac.   804),   718,   743. 
Olson  V.  Hustner    (6  S.   D.  354,   61 

N.   W.   247),   817. 
Omaha  v.   Reeter    (66   N.  W.   650), 

1116. 
Omaha  v.  Robinson    (77  N.  W.  73), 

301. 
O'Neil   v.   Blessing    (34   O.    S.   34), 

45. 
O'Neal  V.  Doughitt    (18   Pac.    199), 

1289. 
Orcliard   V.   Alexander    (157    U.    S. 

383,  39  L.  Ed.  737),  1780. 
Ord  V.   Case    (110  N.   W.  551),  46. 
Ordway -v.  Downer    (51  Pac.  1047), 

1057. 
Ormsby    v.    Baer     (22    Mich.     80), 

1177. 
Osborn,  In  re    (87    Cal.   1,   25   Pac. 

157,  11  L.  R.  A.  264),  757. 
Osborn  v.  Hughery   ( 14  Okla.  29,  76 

Pac.   146),   1,53. 
Osborn  v.  Shotwell   (50  N.  W.  164), 

818,  819. 
Osborne  v.  Schleichnmaier    (60  Kan. 

421,    75    Pac.   474),   57,   63. 


O'SuIlivan  v.  Overton  (56  Conn.  102, 

14   Atl.   300),  441. 
Outcalt  V.  Collier    (8   Okla.  473,  58 

Pac.  642),  67. 
Outcalt  V.  Collins    (8  Okla.  473,  58 

Pac.  642),  93. 
Ottumwa    V.    McWilliams     (71    la. 

104,  32  N.  W.  315),  440. 
Overstrect   v.   Baxter    (30   Kan.   55, 

1   Pac.   825),    1075. 
Overstreet    v.    Rice     (96    Am.    Dec. 

279),  451. 
Owen  V.  Wickham   (38  Kan.  225,  16 

Pac.  335),   809. 
Ozark  v.   Still    (103   Pac.   586),  46. 


Packard   v.   Packard    (34   Kan.   53, 

7    Pac.    628),    92. 
Packing  v.   Dick    (4   Okla.   661,    46 

Pac.  593),  29. 
Palmer   v.   York    (77   Minn.   20,   79 

N.  W.   587),   1178. 
Palmetto   v.   Richer    (1   Kan.   561), 

46. 
Pankan  v.  Larzelere    (52  Pac.  906), 

1112. 
Pappe    V.    Trout    (3    Okla.    260,    41 

Pac.   397),   955,   956. 
Paquete  v.  Hebanna  (175  U.  S.  677, 

44    L.    Ed.    320),    1736. 
Parker  v.  McCombes    (17  R.  S.  247, 

24  Atl.  464),  345. 
Parker   v.    Western    (48   N.   J.   Eq. 

94),  1167. 
Parsons  v.  Gadeka   (95  N.  W.  850), 

86. 
Passewilke    v.    Bollman    (45   N.   W. 

780),    171. 
Patterson  v.  Same   (57  Kan.  277,  46 

Pac.  304),  57. 
Patton    V.    Same     (39    0.    S.    590), 

1200. 
Patton    V.    SherifT     (2    Ohio,    395), 

138. 
Paulson  V.  Ward    (4  N.  D.   100,  58 

N.  W.  792),  505. 
Paulter  v.  Manuel    (108  Pac.  702), 

477a. 
Payne  v.  Long    (9  Okla.  683,  6  Pac. 

235),   153,   154. 


TABLE   OF    CASES. 


evil 


[References  are  to  sections.] 


Pearline  v.  Ulrick   (78  N.  W.  275), 

174. 
Pearson's  Estate    (110  Cal.  524,  42 

Pac.    9b0),    529. 
Peckenpaugh  v.  Quillen    ( 12  N.  W. 

104),  301. 
Peddicord    v.    Beck    (86    Pac.    405), 

804. 
Pemberton    v.    Pollard     (25    X.    W. 

582),    178. 
Penn   v.   Hayward    (14   0.   S.   302), 

20. 
Pennington  v.  Yell    (11   Ark.   219), 

569. 
Pennock   v.   Monroe    (5   Kan.   578), 

84. 
Pennover   v.   XefT    (95   U.    S.    714), 

56. 
Penrock  v.  Hoover    (5   Ralls,  291), 

1014. 
Penny  v.  Richardson    (12  Okla.  256, 

71   Pac.  227),  823. 
Pennvwit  v.   Foote    (27   0.   S.  600), 

87. 
Pennvwit  v.  Foote    (27   0.  S.  600), 

i3. 
People    v.    Chicago     (152    111.    546, 

38  X.  E.  744),  1736. 
People   V.   Green    (74    Cal.    400,    16 

Pac.   348),    58. 
People    V.    Hoffman     (97    111.    234), 

1736. 
People   V.    Mullan    (65    Cal.   396,    4 

Pac.    348),    58. 
Peppin  V.  Prindle    (61  Wis.  301,  21 

X.  W.   254),    1114. 
Perry    v.    Jefferson     (94    111.    214), 

1736. 
Perry  v.  Richardson  (27  0.  S.  110), 

'll98,  1200. 
Perry  v.  Same   (94  Tenn.  328),  617. 
Perry   v.    Sharp    (8    Fed.    Rep.    15), 

"l8. 
Petersine  v.  Thomas   (28  O.  S.  597), 

89. 
Peterson   v.   Alboch    (51    Kan.    150, 

32    Pac.    917),     1147. 
Petit    V.    Black    (12    X.    W.    841), 

809. 
Petit  V.  Flint   (78  X.  W.  554),  1167. 
Petit   V.    Shepherd    (5   Paige,    501), 
1177. 


Petite   V.    Shepherd    (5   Paige,    493, 

28  Am.  Dec.  437),  121. 
Peyton   v.   Desmond    (129    Fed.    1), 

1780. 
Phillips   V.    Dana     (3    Scam.    558), 

166. 
Phillips  V.  Seymour    (91  U.  S.  650, 

23  L.  Ed.341),  442. 
Phillips  V.  Same    (13  S.  D.  231,  S3 

X.  W.   94),   837. 
Phillips  V.  Springfield  ( 76  Kan.  783, 

92  Pac.   119),  1011. 
Phillipps  V.  Ehvell    (14  0.  S.  240), 

43. 
Phelps  V.  Baker  (30  Pac.  477),  1011. 
Phoenix  v.  ilcEvoy  (72  X.  W.  956), 

166. 
Pickett  V.  Pickett    (31   Kan.  727,  3 

Pac.  549),    154. 
Pier   V.   City    (38   Wis.   470),    1177. 
Pierce    v.    Same     (9    Ves.    R.    547), 

72,  351. 
Pierce  v.  Same    (47  Me.  507),  483. 
Pierce   v.   Butters    (21    Kan.    124), 

59. 
Pierce    v.    Osborne    (19    Pac.    656), 

1016. 
Pilcher   v.    Atkinson    (7   Pac.    613), 

1286. 
Pillow  V.  Wade   (31  Ark.  678),  569. 
Pina    V.    Peck     (31    Cal.    559),    522. 
Pittsburgh    v.    Railway     (20    C.    C. 

561),   1184. 
Place    V.    Johnson     (20    Minn.    19), 

493. 
Plaires,   etc.,    v.    Lynch     (38    Mont. 

271,  99  Pac.  847),  217. 
Pleasant  v.   Shawgo    (54  Kan.    732, 

39  Pac.   704),    114. 
Plummer  v.  Wells   (6  Ind.  Ter.  189, 

90  S.  W.  303),  88. 
Poe  V.  Dixon   (66  0.  S.  124),  1057. 
Poff,  In  re  (103  S.  W.  765),  1785. 
Pollard  V.  Wagner    (13   Wis.   569), 

43. 
Poison  V.  Parsons    (104  Pac.  336), 

804. 
Pope  V.  Xichols  (59  Pac.  257),  1126. 
Pope   V.  Xichols    (61    Kan.    230,    59 

Pac.  257),  1274. 


CVlll 


TABLE   OF    CASES. 


[Rpferences  are  to  sections.] 


Poplin   V.   Wendel    (27    Kan.    138), 

1083. 
Porterfield  v.  Butler   (47  Miss.  156, 

12  Am.  Rpp.  329),  85. 
Portage   v.   Stukey    (18  Ohio,   455), 

24. 
Portage  v.  Western    (G  0.  S.  599), 

24. 
Post    V.    Bohner    (36    N.    W.    308), 

809. 
Postle    V.    Martin     (95    N.    W.    8), 

1142. 
Potter  v.  Ajax    (61   Pac.  999),  346. 
Potter  V.  Ajax    (57  Pac.  270),  348. 
Powers  V.   Rude    (14   Okla.   381,   79 

Pac.    90),   436. 
Powers  V.  Rude    (14   Okla.  381,  79 

Pac.  94),  442. 
Pratt    V.    HartscluifT     (106    N.    W. 

966),   99. 
Pratt  V.  Longworth    (27  0.  S.  159), 

159. 
Pratt  V.  Ratcliffe   (10  Okla.  168,  61 

Pac.  125),  89. 
Price  V.  Allen    (18  Pac.  609),  1174. 
Price  V.  Allen   (39  Kan.  476),  1171. 
Price  V.  Citizens   (23  Okla.  723,  102 

Pac.  800),  1061. 
Price    V.    Citizens    (102    Pac.    803), 

133. 
Priest  V.  Robinson   (64  Kan    416,  67 

Pac.  580),   1274. 
Prigsley   v.   Chicago    (69   Kan.   599, 

77  Pac.  579),  94. 
Pritchett,    In   re    (51    €al.   568,    52 

Pac.  94),  744. 
Proctor   V.  Tye    (96   S.   W.  512,   29 

Ky.   Law  Rep.   804),  345. 
Provins    v.    Love     (6    Okla.    94,    50 

Pac.  581),  64. 
Pryor    v.    Downey     (50    Cal.    388), 

707. 
Psyche  v.  (94  N.  W.   135), 

1293. 
Pumphrey    v.    Pumphrey     (52    Ark. 

193,  12  S.  W.  390),*  580. 


Q 


Quarles  v.  Heirn    (70  Miss.  891,   14 
So.  23),  43, 


Quincy   v.    Fenney    (18    Wis.    510), 

1748. 
Quinlan  v.  Dodford    (28  Kan.  507), 

317. 
Quinton    v.    Derrill    (59    Kan.    772, 

51  Pac.  898),  64. 


Ralim  V.  Lopee   (28  Kan.  159),  178. 
Railroad  v.  Commissioners  ( 18  Kan. 

169),  472. 
Railroad    v.    Johnson     (119     U.    S. 

60S,  7  Sup.  Ct.  340),  810. 
Railroad    v.    Johnson    (37    la.    15), 

810. 
Railroad  v.  Morey    (47  O.   S.  210), 

22. 
Railroad    v.    Neighbors      (51     Miss. 

412),  472. 
Railroad  v.  Prescott   (10  Wall.  603, 

21    L.    Ed.    733),    1748. 
Railroad  v.  Transportation,  etc.   (32 

O.  S.   135),  46. 
Railway  v.  Coleman    (91   Ind.  551), 

1114. 
Railway  v.  Commissioners   (30  0.  S. 

120),  1178. 
Railway  v.   Higgins    (44  Ark.  293), 

82a. 
Railway    v.    Hood     (66    Ind.    580), 

1114. 
Railway    v.    Lonnie     ( 1    W.    L.    B. 

315),    1009. 
Railway    v.    McPratney     (12    Kan. 

911),  1126. 
Railway    v.    Pracht     (1    Pac.    319), 

1126. 
Rain    v.   Young    (61    Kan.    428,    59 

Pac.  1068),  133,  160. 
Rainbow   v.  Young    (161    Fed.   Rep. 

185),    1735. 
Ralton  V.   Laider    (126   111.   219,    18 

N.  E.  555),  152. 
Randall  v.  Turner    (17   0.   S.  262), 

76. 
Randall  v.  Van  Wagoner   (115  N.  Y. 

527,  22  N.  E.  561),  342. 
Randell  v.  Barker   (67  Kan.  744,  74 

Pac.  240),  64. 
Randolph  .v.  Hudson   (12  Okla.  516, 

74    Pac.    946),    89. 


TABLE   OF    CASES. 


CIX 


[References  are  lo  sections.] 


Eanker  v.  Hannan    (37  0.  S.  117), 

136. 
Eanney   v.    Nelson     ( 10    Okla.    675, 

65  Pac.  98 ) ,  294 
Ranney    v.    Warner    ( 13    Hun,    11), 

476. 
Rapp   V.    Kyle    (26   Kan.   89),   305. 
Rappine  v.  McPherson  (2  Kan.  340), 

297,  305. 
Ravidels   v.   Wilson    (22   Okla.   689, 

98  Pac.  949),  46. 
Rawle^v  v.   Varnum    (15    Okla.   612, 

84  Pac.  487),  1013. 
Rawson  v.  Sherwood    (59  Kan.  776, 

33  Pac.  69),  58. 
Raymond   v.   Gill    (10   N.    \\.   709, 

41    Am.    St.    763),   301. 
Raymond  v.  Nix    (50  Okla.  656,  49 

Pac.    1110),   59,    129,   292,   297, 

317. 
Raymond  v.  Railway  ^57  0.  S.  282), 

1120. 
Ream    v.    Wooes     (61    0.    S.    131), 

91. 
Red    Bird    v.    United    States     (203 

U.  S.   76,  51   L.  Ed.  97),   1819, 

1830. 
Red    River    v.    Freeman     (1    N.    D. 

196),    505. 
Reddick  v.   Webb    (6  Okla.  392,  50 

Pac.  363),  29. 
Redfield,    In    re    (106   Ala.    637,    48 

Pac.  794),  616. 
Redmond    v.    Packingham     (66    111. 

434),    1177. 
Redwine  v.  Annesley  ( 122  Pac.  679) , 

1791. 
Reece  v.  Zum    (103   Fed.  Rep.  97), 

439. 
Reed    v.    Ash    (30   Ark.    775),   592. 
Reed    v.    Radigan    (42    O.    S.   292), 

155. 
Eeehl  v.  Thomason    (114  Ind.   311, 

15  X.  E.  345),  457. 
Reese  v.  Rice   (1  Kan.  App.  311,  41 

Pac.  218),   170. 
Reeves  v.   Pence    (64   Kan.   502,   69 

Pac.   1108),  56. 
Reichert   v.   Phelps    (6   Wall.    160), 

2129. 
Reith,  In  re   (144  Cal.  314),  658. 


Remington  v.  Lithicum  (14  Pet.  84), 

166. 
Rempe   v.   Ravens    (68    0.   S.    113), 

289. 
Ren  V.  Brown    (2  Kan.  App.   1,  42 

Pac.  392),    1015. 
Rcngie    v.   Holquah     (112    Mo.    519, 

20   S.   W.   800),  453. 
Rennert   v.   Klenk    (91   Mich.    1,   51 

N.    W.    692),    493. 
Repine  v.  McPherson   (2  Kan.  340), 

56. 
Repp  V.  Kyle   (26  Kan.  89),  44. 
Republic  v.  Sayre    (13  N.  W.  404), 

39. 
Reynolds  v.  Cobb   (19  N.  W.  [Neb.] 

509),  136. 
Reynolds  v.  Fewell   (124  Pac.  623), 

1758. 
Ritchie   v.   Higginbotham    (26   Kan. 

645),   160. 
Ritchie   v.   Higginbotham    (26   Kan. 

645),   133. 
Rhea  v.  Dick   (54  0.  S.  420),  1178. 
Rhea  v.  Williams    (103  Pac.    119), 

1126. 
Rhoades    v.    Symes    (1    Ohio,    281), 

136. 
Rhodes  v.  Rhodes    (11  N.  W.   122), 

56. 
Rhotan    v.    Chain     (99    Cal.    645), 

673. 
Rhoton  v.  Blevin  (99  Cal.  045),  652, 

658. 
Rice  v.  West    (10  Okla.   1,  33   Pac. 

499),  811. 
Rice  V.   West    (10  Okla.    1,  33   Pac. 

231),  813,  814. 
Richard  v.  Donnert   ( 72  Cal.  207,  13 

Pac.  544),  477a. 
Richards    v.    Sheff    (8    0.    S.    589), 

90. 
Richardson  v.   Loupe    (80  Cal.  490, 

22  Pac.  227),  1251,  1254. 
Richardson  v.  Penny   (50  Pac.  231), 

816. 
Richardson  v.  Penny    (10  Okla.  32, 

01  Pac.  584),  37. 
Richardson  v.  Penny    (6  Okla.  328, 

50  Pac.  231),  804. 
Richardson  v.  Game    (26  Cal.   149), 

57. 


ex 


TABLE   OP    CASES. 


[References  are  to  sections.] 


Richardson    v.    Tj'son     (80    N.    W. 

250),  355. 
Richardson    v.    Tyson     (86    N.    W. 

[Wis.]   250)/ 74,   75. 
Richey  v.   Kansas    (55   Kan.   36,   30 

Pac.  718),  1114. 
Richter  v.   Same    (111   Ind.  456,   12 

N.  E.  360),  1114. 
Riddell    V.    Roll     (24    0.    S.    572), 

159. 
Riddle  v.  Roll    (24  0.  S.  572),  159. 
Riley    v.    Allen     (81    Pac.    186,    71 

Kan.  625),  444. 
Riley  v.   Calron    (4   Ind.   Ter.   376, 

69  S.  W.  108),  1138. 
Rinhimer  v.  Carter   (31  0.  S.  519), 

461. 
Roades   v.    Symmes    (1    Ohio,   281), 

136,   157. 
Robinson  v.   Elliott    (22   Wall.   527, 

22  L.  Ed.  758),  505. 
Robinson  v.  Fair   (128  U.  S.  53,  32 

L.  Ed.  415),   1251. 
Robinson    v.    Fidelity     (11     S.    W. 

106),  73. 
Robinson  v.  Fidelity  (US.  W.  100), 

352. 
Robinson   v.   Hall    (33   Kan.    139,   5 

Pac.   763),  62. 
Robinson  v.   Owen    (119   Pac.  995), 

1764. 
Robinson  v.  Owen    (119   Pac.   995), 

1820. 
Roberts   v.   Burr    (135   Cal.   106,   67 

Pac.   146),  505. 
Roberts   v.    Remy    (56    0.    S.    249), 

1202. 
Roberts  v.  Roberts    (51   0.  S.  896), 

76. 
Robertson    V.     Howard     (112    Pac. 

162),  1126. 
Robey    v.    Rainsberger     ( 27    0.    S. 

674),  89,  93. 
Robey    v.    Rainsberger     (27    0.    S. 

677),   89. 
Rockefellow   v.   Pay    (40   Ark.   69), 

569. 
Rockwood    V.    St.    John     (10    Okla. 

476,   62   Pac.   277),   929. 
Rogencamp  v.  Heargraves  (58  N.  W. 
162),—. 


Rogers,   In  re    (94   Cal.   520),    658, 

694. 
Romig   V.    Oillette     (10    Okla.    186, 

62  Pac.  407),  92. 
Romig    V.    Gillette     (10    Okhi.    186, 

62   Pac.    805),   57. 
Ronsavillo    v.    Hazon    (5    Pac.    771, 

33  Kan.   149),   152. 
Rooke    V.    Kensington     (2    K.    &    J. 

753),  486. 
Rosemerson    v.    Rudy     (84    N.    W. 

2057),  475. 
Ross,  In  re    (140  Cal.  282),  652. 
Ross  V.  Cook    (80  Pac.   38),  450. 
Ross  V.  Hinott   (—  Okla.  — ),  1296. 
Ross  V.   Sedgwick    (69  Cal.  247,   10 

Pac.  400),  505. 
Ross  V.  Stewart   (25  Okla.  611,  106 

Pac.  870),  1829. 
Ross    V.    Wright     (110    Pac.    949), 

1821,    1828. 
Rossin  V.  Lynn    (23  Fed.  107),  485. 
Rothgeb   V.    Monk    (35    0.   S.    103), 

1178. 
Rough  V.  Acknovitch    (30  W.  L.  B. 

302),  138. 
Rowe  V.  Griffith    (08  N.  W.   [Neb.] 

20),  63. 
Rowe    V.    Rowe    (61    Kan.    802,    60 

Pac.    1049),    1204. 
Ruecle  v.  Welty    (111   N.  W.  463), 

1116. 
Rulenian   v.   Hulze    (9   Pac.    [Kan.] 

210),  18,  33,  26. 
Rumson  v.  Merrill    (17  Okla.  44,  86 

Pac.  431),  317. 
Rust   V.   Conrad    (47  Mich.   449,    11 

N.  W.  265,  41   Am.  Rep.  720), 

439. 
Ryan  v.    Cranslow    (27   Kan.    672), 

34. 
Ryan  v.  Dox    (34   N".  Y.  307),  451. 
Rvan  V.  Root    (56   0.  S.  302),   138. 
Ryan  v.   State    (7  N.  W.  276),  93. 
Ryan  v.   United   States    (136  U.   S. 

68,  10  Sup.  Ct.  913),  454. 
Ryder,  In  re   (141  Cal.  371,  74  Pac. 

993),    1254. 
Ryer  v.  Fletcher    (126  Cal.   482,  58 

Pac.  008),  1253. 
Ryhluxen,  v.   Hulze    (32    Kan.   598, 

5  Pac.   176),  33. 


TABLE  OF  CASES. 


[References  are  to  sections.] 


Tyndock  v.  Leawell    (13  Okla.  737, 
76  Pac.  170),  1016. 


S 


Sale    V.    McLean     (29    Ark.    612), 

1177. 
Salma  v.  Burr    (52  Pac.   704),  977. 
Salmon,  In  re    (107  Cal.  014),  652. 
Samson  v.   Same    (64   Cal.   327,   30 

Pac.  979),  744. 
Samson  v.  Samson   (64  Cal.  327,  30 

Pac.  979),  742. 
Sanders  v.  Same    (28   Okla.  59,   117 

Pac.  338),   1756,   1759. 
Sanderson,  In  re    (74  Cal.    199,    15 

Pac.  753),  757. 
Sanford  v.  Gates   (21  Mont.  277,  53 

Pac.  749),  493. 
San  Francisco  v.  Superior   (116  Cal. 

443),  621. 
Santon  v.  Ballard   (133  Mass.  464), 

87. 
Saver  v.   Brown    (7   Ind.   Ter.    675, 

104  S.  W.  877),   1790. 
Sayer   v.  Brown    (104   S.  W.    [Ind. 

Ter.]  877),  2118. 
Scantlin   v.   Allison    (32    Kan.    379, 

1   Pac.   618),   1120. 
Scarborough     v.     Smith     ( 18     Kan. 

400),    1120. 
Scarborough    v.    Smith      (IS     Kan. 

399),  1210. 
Schade     v.     Connor      (126     X.     W. 

[Xeb.  1910]   1013),  78. 
Schade  v.  Conner  (120  X.  W.  1013), 

354. 
Schedel,  In  re   (73  Cal.  594),  6173. 
Schenck    v.    Spence    (47    X.    J.    E-q. 

44,   19  Atl.  881),  441. 
Schie   V.    Schie    (6    Kan.   App.    136, 

50   Pac.    903),   93. 
Schlegel    V.    Link     (105    Pac.    652), 

813. 
Schlegel    v.    Link     (105    Pac.    652), 

811. 
Schlitz    V.    Smith     (17    Kan.    300), 

166. 
Schneider    v.    Anderson     ( 75    Kan. 

11,  88  Pac.  525),  452. 


Schnell    v.    Jay     (4    Okla.    392,    50 

Pac.   S63)]   29. 
School  V.  Howell    (44  Kan.  230,   19 

Pac.   813),   1016. 
School  V.  Koontze   (92  X.  W.  597), 

93. 
Schultz   V.    Barrows    (8    Okla.    297, 

56   Pac.    1053),   929. 
Schultz  V.  Hine   (18  Pac.  221),  806. 
Schultz  V.   Pearson    (64   Pac.   963), 

450. 
Schumacher    v.    Seebert     ( 18    Kan. 

104),  1057. 
Schuyler  v.  Borling  (45  X.  W.  164), 

29. 
Sconce    v.    Whitney     (12    111.    150), 

76. 
Scott,   In  re    (1    Cal.   App.   740,   83 

Pac.   85),   757. 
Scott,  In  re    (60  Pac.  528),   616. 
Scrock    V.    Zubler     (34     Pac.     38), 

1278. 
Scroggs    V.    Trett     (23    Kan.    182), 

165. 
Scully    V.    Porter     (46    Pac.    313), 

947,    981. 
Seaton  v.  Hixon    (35   Kan.   663,   12 

Pac.  22),   1020. 
Seibert  v.  Sweetzer    (35  0.  S.  661), 

288,  289. 
Seitz    V.    United    States     (16    Kan. 

133),   1012. 
Selders  v.  Boyd   (5  Kan.  App.  451, 

49   Pac.   320),    86. 
Selders  v.  Boyde   (5  Kan.  App.  405, 

49   Pac.  320),   114. 
Selles    V.    Roberts    (13    Serg.    &   R. 

63),  955. 
Sesmoda    v.    Rimodka     ( 145    U.    S. 

29),  374. 
Severns   v.   English    (19    Okla.   567, 

101  Pac.  750),  1563. 
Sewell   V.   Hendricks    (4   Okla.   435, 

46  Pac.  557),  1074. 
Shafenbury  v.  Bishop    (35   la.  60), 

1279."^ 
Shafer    v.    Wells    (69    Kan.    25,    76 

Pac.  436),  — . 
Shaffer   v.   Shade    (7   Blackf.    178), 

474. 
Sharp  V.  Lancaster    (100   Pac.   578, 

23  Okla.  349),  2121. 


CXll 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Sharp  V.   Lancaster    (25   Okla.   349, 

100  Pac.  578),   17(55. 
Sharp  V.   Ross    (7    C.   C.   50),    137. 
Shaw  V.  Stewart    (43  Kan.  572,  23 

Pac.  616),  1014. 
Shawkin    v.     City     (16     O.    S.     1), 

85. 
Shawnee  v.  Bank    (ICC.   [N.  S.] 

509),  292. 
Sheehan    v.    Allen     (67    Kan.    712, 

74  Pac.  245),  1207. 
Shelby  v.  Siogler   (22  Okla.  799,  98 

Pac.  989),  412. 
Sheldon  v.  Preussner   (52  Kan.  593, 

35   Pac.   204),   156. 
Sheldon   v.   Newton    (3    0.   S.   495), 

159. 
Sheldon   v.   Newton    (3   0.   S.   494), 

91. 
Sheldon  v.  Pinssner    (35  Pac.  204), 

164. 
Shellenberger    v.    Fewell     ( 124    Pac. 

617),    1126. 
Shellenberger    v.    Fewell    ( 124    Pac. 

617),    1758. 
Shelly  V.   Zigler    (22   Okla.   729,   98 

Pac.  989),  296. 
Shepherd,    In    re     (149    Cal.    219), 

620. 
Sherburne   v.    Shaw    ( 1    N.   H.    157, 

8  Am.   Dec.   47),   441. 
Shields  v.    Bush    (189   111.   534,   82 

Am.   St.  474),  933. 
Shields    V.    Miller     (9    Kan.    390), 

57. 
Shields    v.    Miller     (9    Kan.    390), 

57,  58,  1061. 
Shulthis    V.    McDougal     (170    Fed. 

529,    29    C.    C.    A.    615),    1759. 
Shulthis    V.    McDougal     (162    Fed. 

162),  1787. 
Shy  V.  Brochause    (7   Okla.   35,   54 

Pac.  306),  1136. 
Sillen   V.   Cheshfield    (1   Hand.   87), 

293. 
Simmons    v.    Wagoner     (101    U.    S. 

260,  25  L.  Ed.  910),  1750. 
Simmons  v.  Whittington    (112   Pac. 

[Okla.]  1018),  2118,  2120,  2122. 
Simmons  v.  Whittington    (27   Okla. 

— ,  112  Pac.  1018),  1789. 


Simons,   etc.,    v.   Doren    (142   U.   S. 

147),    493. 
Simpson    v.    Alexander      (6     Coldw. 

619),  78. 
Simpson    v.    Alexander    (46    Coldw. 

619),    354. 
Simpson   v.  Boring    (16   Kan.  248), 

1126. 
Simpson   v.  Boring    (16  Kan.   248), 

1116. 
Simpson   v.    Rice    (43    Kan.    22,    22 

Pac.   1019),   32. 
Sims  V.  Burnham    (6  Okla.  018,  52 

Pac.  918),  08,  300. 
Skelton    v.    Dill     (119    Pac.    207), 

1297. 
Skinner    v.    First    (80    N.    W.   42), 

317. 
Skinner    v.    Scott     (118    Pac.    394), 

472. 
Small  V.  Small    (10  Am.  Dec.  255), 

617. 
Smith,   In  re    (145   Cal.    118),   652, 

694. 
Smith's  Estate   (131  Cal.  433),  529. 
Smith    V.    Baker    (5    Okla.   326,    49 

Pac.  01),  567. 
Smitli  V.  Bank    (26   0.  S.  141),  93. 
Smith  V.  Hescailiez  (84  Cal.  344,  21 

Pac.  15),  842,  852. 
Smith    V.    Burnes     (8    Kan.     198), 

104. 
Smith   V.    Collins    ( —   Kan.   — ,   21 

Pac.   1058),  21. 
Smith  V.  Dalton  ( 1  C.  S.  C.  R.  150), 

292. 
Smith    V.    Dearse     (27    Pac.    167), 

317. 
Smith   V.   Eagle    (—   Okla.  — ,    108 

Pac.   629),    86. 
Smith  V.  Fenger    (15  Okla.   120,  79 

Pac.   759),    812. 
Smith  V.   Finger    (15   Okla.  120,   79 

Pac.   759),  88. 
Smith   V.   Hobbs    (49   Kan.   800,   31 

Pac.  687),  1130. 
Smith    V.    Hogg     (52    0.    S.    528), 

136. 
Smith    V.     Hunt     (13    Ohio,    260), 

1112. 
Smith    y.   Hunt    (13    Ohio,   200,   42 

Am.^  Dec.  201),  1279. 


TABLE   OF    CASES. 


CXlll 


[References  are  to  cections.  ] 


Smith   V.   Johnson    (57   0.   S.   4S6), 

25. 
Smith  V.  Kimball   (36  Kan.  474,  13 

Pac.    801),    138. 
Smith    V.    Kimball     (30    Kan.    474, 

13  Pac.  801),  70. 
Smith  V.  Lockwood   (13  Barb.  209), 

472. 
Smith    V.    Olstead    (188    Cal.   582), 

652. 
Smith    V.    Plyton     (13    Kan.    362), 

299. 
Smith  V.   Railroad    (60  N.  W.  44), 

348. 
Smith  V.  Travel    (20  Okla.  512,  94 

Pac.  529),  805. 
Smithers  v.  Ramey    (14  0.  S.  287), 

93. 
Snell  V.  Mitchell  .(65  Mo.  48),  443. 
Snyder  v.  Deprast   (82  X.  E.  742), 

346. 
Society   v.   Hames    (47   0.   S.   424), 

1057. 
Solomon  v.  Wilmington    ( 142  N.   C. 

439,  55   S.   E.  300,   6  L.   R.   A. 

[X.  S.]     591),    439. 
Sorrels    v.   Johnson    (26   Okla.   569, 

110  Pac.  743),  1793. 
Sorrels  v.  Jones    (26  Okla.  569,   110 

Pac.  743).  1780. 
South   V.    Rathbone    (19    Ohio,   21), 

157. 
Southern   v.    Ward    (85    Pac.    400), 

92. 
Southland    v.    Holiday    (92    X.    W. 

937),    93. 
Southward    v.    Jameson    (00    0.    S. 

311),  3,  85,  87,  91. 
Spangler  v.  Dukes    (39   0.  S.  642), 

1178. 
Sparks  v.  Bayer  (5  Kan.  App.  721), 

18. 
Sparks  v.  Boyer   (5  Kan.  App.  721, 

46   Pac.    980),   32. 
Sparks  v.   City    (21    Okla.   827,   97 

Pac.  575),   154. 
Sparrhaw    v.    Yerkes     (142     U.    S. 

1),  374. 
Spear  v.   Coell    (33   0.   S.  236),   3. 
Speller  v.  Xye    (10   Ohio,   10),   147. 
Speller  v.  Xye   (10  Ohio,  563),  147. 
Sperry  v.  Pond  (5  Ohio,  388),  1112. 


Spier  V.  Cordel   (33  O.  S.  236),  87, 

91. 
Spoors  V.   Coen    (44   0.  S.   497),  3, 

85,  87,  91. 
Springfield  v.  Hobart   (98  Mo.  App. 

227,  68  S.  W.  942),  346. 
Sproul  V.  Atchinson   (22  Kan.  336), 

508. 
Stackhouse  v.  Horton   (15  X.  J.  Eq, 

228),  616. 
Stair    V.    Stair     (6    Wall.    418,    18 

L.   Ed.    925),    1750. 
Stair  V.  Wright  (20  0.  S.  99),  1275. 
Standard  v.  Lansing  (48  Pac.  048), 

500. 
Standard    v.    Snowden     (55    O.    S. 

332),    1010. 
Standifer  v.  Morris    (25  Okla.  802, 

108  Pac.  413),   1175a. 
Stanley   v.    Roberts    (59    Fed.    Rep. 

830,   8   C.    C.   A.    305),    89. 
Stanton     v.     Ballard      (133     Mass. 

40),  3. 
Stanton  v.  Enquire    (7  X.  P.  589), 

22. 
Stanton  v.  Kendrick   (45  X.  E.  19), 

1057. 
Stapleton  v.  Ellison  (21  O.  S.  527), 

1200. 
Starkweather   v.   Morgan    ( 15   Kan. 

274),  43. 
Starkweather   v.   Morgan    ( 15   Kan. 

274),    44. 
Starr  v.  Watkins   (11  X.  W.  363), 

112. 
State  V.  Allen    (5  Kan.  213),   1292. 
State  V.  Bilk   (94  X.  W.  017),   175. 
State    V.    Chambliss    (18    la.    474), 

160. 
State   V.   Commonwealth     (22    Pac. 

982),    1503. 
State  V.  Conover    (8  X.  J.  L.  338), 

836. 
State   V.    Fox    (00    O.    S.   349),    17. 
State   V.   McArthur    (5    Kan.   281), 

130. 
State    V.    McGlynn     (20    Cal.    233, 

81  Am.  Dec.   118),  727. 
State    V.    McLain    (49    Kan.    750), 

1296. 
State,   etc.,    v.    Oklahoma,    etc.    (21 

Okla.    823,    97    Pac.    574),    29. 


CXIV 


TABLE   OF    CASES. 


[References  are  to  sections.] 


State  V.  Stringfellow  (12  Kan.  2G3), 

1126. 
State  V.  Stringfellow   (2  Kan.  259), 

1116. 
State  V.  Williams   (30  Kan.  577,  18 

Pac.   727),  472. 
Stearns   v.    Ballon    (27    Kan.   295), 

1174. 
Stearns  v.  Endors    ( 1  Green's  N.  J. 

R.  271),   1203. 
Stebbins   v.  Guthrie    (4  Kan.  302), 

1169,    1170. 
Stedliam  v.  Mathews   (29  Ark.  50), 

593. 
Stedwell    v.    Anderson     (21     Conn. 

139),    486. 
Steff  V.  Peckham    (4  Okla.   254,  46 

Pac.  664),  1075. 
Steinger  v.  Williams   (63  Ga.  478), 

Steinrod    v.    Railroad    (27    W.    Va. 

1),   450. 
Stevens,  In  re    (83   Cal.   322),   652. 
Stevens    v.    Ballou     (27    Kan.    63), 

1168. 
Stevens  v.  Cherokee  (174  U.  S.  445), 

1797,   1832. 
Stevens  v.  Choctaw  ( 174  U.  S.  445), 

1297. 
Stevens  v.  Choctaw   ( 174  U.  S.  445, 

19    Sup.    Ct.    723),    1735. 
Stevens    v.    Choctaw    Nation     ( 174 

U.    S.    485,    43    L.    Ed.    1055), 

1735. 
Stevens  v.  Elliott  (118  Pac.  [Okla.] 

407),  82a. 
Stevens   v.   Elliott    (118   Pac.   407), 

Stevens  v.  Naylor  ( 106  N.  W.  [Neb.] 

446),    152. 
Stevens  v.  Regensten  (89  Ala.  561), 

505. 
Stevenson  v.  Elliott    (53  Kan.  550, 

36  Pac.  980),  490. 
Stewart,  In  re    (81  Pac.  68),   1254. 
Stewart  v.  Same    (27  W.  Va.  167), 

43. 
Stewart    v.     Griswold     ( 134    Mass. 

391),  43. 
Stewart  v.  Hoar  (2  Bro.  C.  C.  663), 

351. 


Stewart    v.    Hoare     (2    Bro.    C.    C. 

6(i,3),  73. 
Stewart    v.    Hoare     (2    Bro.    C.    C. 

663),  72. 
Stewart  v.  Severance   (43  ]\lo.  322), 

166. 
Stewart    v.    Stringer    (41    Mo.    40), 

43. 
Still   V.   Palmer    (41   Miss.   89),  85. 
Stimson    v.    Green     (22    Pac.    586), 

1290. 
St.  Joseph  V.  Casey    (14  Kan.  504), 

309. 
St.  Louis  V.  Coal  Co.  (Ill  111.  32 ) ,  3. 
St.  Louis  V.  Cola  Co.   (Ill  HI.  32), 

87. 
St.    I^uis    V.    Cox    (122   Pac.    130), 

1779. 
St.  Louis  V.  De  Ford    (38  Kan.  299, 

16   Pac.    442),   52. 
St.  Louis  V.  Langlin   (49  Fed.  440), 

1738. 
St.   Louis   V.   Oliver    (17   Okla.  419, 

87  Pac.  423),  86. 
St.  Louis  V.  Phillips   (17  Okla.  264, 

87   Pac.  420),   111. 
Stone    V.    Banking    (8    C.    C.    636), 

214. 
Stout  V.  Hyatt  (13  Kan.  232),  1116. 
Stout  V.  Hyatt  (13  Kan.  176),  1118. 
Stout  V.  Simpson  ( 124  Pac.  [Okla.l 

754),   2127. 
Stover    V.    Hogebaker     (60    N.    W. 

597),  809. 
Straton  v.  Morgan    (112  Cal.  513), 

628. 
Stratton,    In    re     (112    Cal.     513), 

'666,  679. 
Stratton    v.    Hawk    (23    Pac.    591), 

1283. 
Striker    v.    Mott     (2    Paige,    389), 

1203. 
Strobe    v.    DowTier     (13    Wis.    11), 

85,   87. 
Strobe  v.  Downer    (13  Wis.   10),  3. 
iStuU  V.  Powell    (30  Neb.   152),   18. 
StuU   V.   Powell    (97   N.   W.    249), 

18. 
Stullar    V.    Parks     (31    Pac.    301), 

804. 


TABLE   OP    CASES. 


cxv 


[RefereDces  are  to  sections.] 


Sturgis  V.  Galendo   (59  Cal.  28,  43 

Am.  Rep.  239),  439. 
Stutsner  v.  Prince   (61  N.  W.  620), 

317. 
Styer,    In    re     (3    Am.    Bank    Rep. 

424),    374. 
Styles    V.    Murphy     (4    Ohio,    92), 

136. 
Styles  V.  Widener    (35  0.  S.  550), 

157. 
Sullinger    v.    Buck     (22    Kan.    28), 

139. 
Superior  v.  Melilin   (108  Pac.  54.")), 

458. 
Superior  v.  ]\Ieliling  (108  Pac.  545), 

434. 
Supreme  v.  Bennett  (472  J.  Eq.  39), 

1753. 
Sutlierhind  v.  Taintor  ( 17  Okla.  427, 

87  Pac.  900),  450. 
Sutro,  In  re   (139  Cal.  87),  682. 
Sutton    V.    Henle     (115    Pac.    570), 

356. 
Sutton    V.    Same    (83    X.    W.    200), 

1127. 
£.  W.  V.  Swanson    (49  Kan.  449,  30 

Pac.  405),  54. 
Swanly  v.  Hutcliers  (13  X.  W.  282), 

292. 
Swordsperger    v.    State     (21     Kan. 

495),  34. 
Swinford  v.  Rodgers    (23  Cal.  233), 

504, 


Taber  v.  Cook  (15  Mich.  322),  1177. 
Tabler  v.   Wiseman    (2   0.   S.   20S), 

1201,    1203. 
Tamer  v.  Ivy    (2  Ves.  Jr.  R.   40;),', 

351. 
Tarponny  v.  King   (82  N.  W.  409), 

809." 
Tate    V.    Jov    (31    Ark.    576),    560, 

591. 
Tausig  V.  Corbin   (142  Fed.  660,  73 

C.   C.  A.   656),   439. 
Taylor  v.   Atwood    (47   Conn.   498), 

477a. 
Taylor   v.   Coots    (48   N.   W.   [Neb.] 

964),  60,  61. 


Taylor   v.   Donley    (112   Pac.   594), 

1126. 
Taylor  v.  Miller   (13  Howard,  487), 

133. 
Taylor  v.  Sprugs   (11   Okla.  710,  09 

Pac.  64),   1176. 
Taylor  v.  St.  Louis   (97  S.  W.  155), 

348. 
Templeton  v.  Wells    (24  Kan.  277), 

823. 
Terry  v.  Logan   (75  Ark.  240),  561. 
Texas     Co.     v.     Henry     (126     Pac. 

[Okla.]     224),    2136,    2137. 
Thayer  v.  Pratt   (189  U.  S.  346,  47 

L.  Ed.  845),  1780. 
Thomas  v.  Gay    (168  U.   S.  204,  4Z 

L.  Ed.  740),  1739. 
Thomas   v.   Gray    (169   U.   S.   271), 

2129. 
Thomas    v.    Myrick     (24    Hun,    4), 

89. 
Thomas    v.    Raner     (64    Pac.    80), 

1116. 
Thomas    v.    White    (2    O.    S.    540), 

1178. 
Thompson  v.    Burge    (60  Kan.   549, 

57    Pac.    110,   72   Am.   St.   Rep. 

369),   133. 
Thompson   v.     Chessman    (48     Pac. 

477),    1057. 
Thompson  v.  Cucult   (54  Mich.  236, 

19  N.  W.  967),  57. 
Thompson  v.  Green    (4   0.  S.  217), 

1112. 
Thompson  v.  Hubbard   (3  Kan.  App. 

714,   44   Pac.    1095),    165. 
Thompson   v.    Ins.    Co.     (136    U.    S. 

287),  74. 
Thompson  v.   Insurance    (136  U.   S. 

287),  357. 
Thompson  v.  Marshall   (36  Ala.  504, 

76   Am.  Dec.  328),   487. 
Thompson    v.    Montross     (2    N.    P. 

[N.  S.]    368),    18. 
Thompson    v.    New    etc.    (110   Ala. 

400,  55  Am.  St.  29),  933. 
Thompson  v.  Ogden  (3  C.  C.  [N.  S.] 

51),  292. 
Thompson  v.  Pfeifer    (60  Kan.  409, 

56  Pac.  763),  32. 
Thompson  v.   Same    (4   0.   S.   333), 

1057. 


CXVl 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Thompson  v.   Toluni    (2   Pot.    157), 

231. 
Thornhill  v.  Hargreaves   ( 107  N.  \V. 

847),  94,  100. 
Thurston  v.   Washington    (18   Okla. 

362,  'JO  Pac.  16),  88. 
Thrall    v.    Wright    (38    Ves.    404), 

350. 
Thwing  V.   Winkler    (13    Okhi.   G4:?, 

75    Pac.    112G),   204. 
Tidball   v.   Schmcltz    (77   Kan.   440, 

94  Pac.   794),   1222. 
Tiger  v.  Western    (221  U.  S.  2St>), 

1735,    1739. 
Tillon    V.    Same     (9    N.    H.    385), 

487. 
Tognior  v.  Christian   (27  Ark.  306), 

5(i9. 
Tohxnd    V.    Tohind     (123    Cal.    140), 

667. 
Tolman  v.  Baltimore    (45  Fed.  Rep. 

170),  45. 
Tomison    v.    Lynch    (29    Cal.    189), 

1177. 
Tootle   V.    Ellis    (63    Kan.   422,    65 

Pac.    645,     88    Am.    St.    246), 

32. 
Tootle  V.  Loyd   (114  Pac.  260),  980. 
Tootle    V.    Mercer     (34    Pac.    301), 

300. 
Topeka  v.   Route    (56   Kan.   187,  42 

Pac.  715),  347. 
Town   V.    Haskell    (116    Pac.    805), 

1736. 
Townsend    v.    Burr     (9    Kan.    App. 

810,    60    Pac.   477),   64. 
Townsend   v.   Kennedy    (160   N.    \V. 

164),  449. 
Townsend     v.    Vanderwerker     ( 160 

U.  S.  171),  451. 
Tracy  v.  Kerr   (47  Kan.  Pac.  707), 

1021. 
Tracy   v.   Muir    (157    Cal.    363,    90 

Pac.  832),  727. 
Trainer  v.  Ivie   (2  Ves.  Jr.  R.  466), 

72. 
Traver,  In  re   (145  Cal.  508),  693. 
Traver    v.    Baker     (38    W.    L.    B. 

[Ohio]  273),  18. 
Travis  v.  Topeka    (42  Kan.  625,  22 

Pac.  991),  70. 


Trepiton    v.   Busee    (10   Kan.    170), 

1  .-)2. 
Trepiton   v.  Busse    (10  Kan.   1070), 

VM. 
'l"i  iiiiblc    V.    Jjongworth     ( 13    0.    S. 

438),  3. 
Triniljle    v.    Longworth     (13    0.    S. 

431),  90. 
Triml)le    v.    Longworth     ( 13    0.    S. 

438),   87. 
Trombly  v.  Martel   (61  Kan.  703,  60 

Pac.   741),   1251. 
Trucble    v.    James     (40    Ark.    393), 

592. 
Tnimlnill    v.  James    (40   Ark.  393), 

583. 
Tucker   v.    Shade    (15    0.    S.    355), 

136. 
Tullos   V.   Brawley    (3    Minn.   277), 

43. 
Turos  V.  Same   (131  Cal.  625),  505. 
Turner    v.    Seep     (167     Fed.    646), 

2119. 
Turner    v.    Utah    (10   Utah,    61,    37 

Pac.   91),  477a. 
Tusca   V.   O'Bren    (68   N.   Y.    446), 

SO. 
Twonbly,  In  re   (120  Cal.    50),  621. 
Tyler,  In  re   (121  Cal.  405,  53  Pac. 

928),  731. 
Tyler   v.  Gardner    (35   N.  Y.   576), 

619. 
Tyler    v.    SafTord     (24    Kan.    581), 

305. 
Tynon    v.    Hall    (22    Okla.    685,    98 

Pac.  895),  1831. 


Ufford    V.    Wilkins     (33    la.    110), 

1135. 
Union  v.  McAlpine  (129  U.  S.  305), 

45. 
Union  v.  Packard   (1  C.  C.  76),  295. 
Union  v.  Van  Renssalaer    (4  Paige, 

84),  72,  73,  357. 
United   States   v.   Aaron    (183    Fed. 

347),    1928,   1929. 
United    States   v.    Allen    (179    Fed. 

13),  2119. 
United  States  v.  Allen  (179  Fed.  13, 

103  C.  C.  A.  1),  1735. 


TABLE   OF    CASES. 


CXVll 


[References  are  to  sections.] 


United   States   v.   Babitt    (1   Black, 

55,  17  L.  Ed.  94),  1736. 
United  States  v.  Dowden   (194  Fed. 

476),  1782. 
United   States  v.   Dowden    (94   Fed. 

176),    478. 
United  States  v.  Fisher   (122  U.  S. 

254),  1764. 
United   States  v.  Freeman   (3  How. 

556),    1885. 
United  States  v.  Hammer    (69  Pac. 

779,   195   Fed.  807),  2129. 
United     States     v.     Koganna     (118 

U.  S.   375),    1735. 
United  States  v.  National    (6  Okla. 

163,  51   Pac.   119),   1564. 
United  States  v.  Old  Settlers    (148 

U.  S.  427),  1797. 
United  States  v.  Rich  (8  Pet.  128), 

72. 
United  States  v.  Rickert   (188  U.S. 

432),    1735. 
United    States   v.    Rogers    (4    How. 

567),    1797. 
United  States  v.  Winona    (15  C.  C. 

A.    96),    1763,    1764. 
Upham,  In  re  (122  Cal.  90),  671. 
Upper,  etc.,  v.  Whittaker    (16  Wis. 

233),  46. 
Upton  V.  Utley    (59   111.  25),   18.34. 
Utley  V.  Free    (33  Kan.  690,  7  Pac. 

555),    1117. 
Utz.  In  re  (43  Cal.  200),  689. 


Vamellons     v.     Huene     (108     Pac. 

1102),   804. 
Vanbluth  v.   Halsey    (37   Kan.    116, 

14  Pac.   482),   174. 
Vance  v.  Morony    (4  Cal.  47),  836. 
Van  Lear  v.  Kansas   (56  Kan.  54.j, 

43  Pac.  1134),  806,  1123. 
Van  Renselaer  v.  Carney    ( 1 1   How. 

326,  13  L.  Ed.  715),  89. 
Vendle  v.  Dutch    (15  Pac.  520),  96. 
Venim  v.  Houston  (56  X.  W.  [Neb.] 

970),  21. 
Venture    v.    Fretta     (152    Pa.    451, 

21  Atl.  732),  439. 
Ventures   v.    Smith    (10   Pet.    161), 

436. 


Vieth    V.    Riss     (87    N.    W.    116), 

1563. 
Village   V.    Reed    (31    N.   W.   797), 

1143. 
Voiles    V.    Bowen     (45   N.    H.    124), 

43. 
Von  Buricken,  In  re    ( 120  Cal.  343, 

52  Pac.  819),  720. 

W 

Wabash,  etc.,  v.  Toledo,  etc.  (7  N.  P. 

198),    1178. 
Wabosu   V.   lienkert    ( IGO   111.  298), 

1736. 
Wachendorf  v.  Lancaster   ( 14  N.  W. 

316),  485. 
Wadsworth  v.  Boyson  (148  Fed.  171, 

78  C.  C.  A.  457),  1739. 
Wagg    V.    Herbert     (19    Okla.    520, 

92  Pac.  250),   1074,   1075. 
Wagley   v.   Jaquez    (114   Mass.  335, 

59'  Am.  Rep.  65),  1753. 
Wagoner   v.   Lubenow    (112   N.   W. 

"247),  817. 
Wagstaff  V.   Moser    (55   Pac.   584), 

^299. 
Wait  V.  Atchison    (103  S.  W.  60), 

343,  348. 
Waken  v.  Owen    (79  Mo.  563),  450. 
Walker,  In  re   (110  Cal.  387),  628. 
Walker  v.  Mims  (14  Ga.  523),  1561. 
Walker  v.  Stevens  (72  N.  W.  1038), 

33. 
Walker  v.  Stevens  (72  N.  W.  [Neb.] 

1038),   26. 
Walker  v.  Stevens  (72  N.  W.  1038), 

38. 
Walkerly,  In  re  (108  Cal.  627),  679, 

684* 
Wall    V.    Williamson     (8    Ala.    48), 

1947. 
Wallace  v.   Adams    (143    Fed.   Rep. 

716,   74   C.   C.   A.  540),   88. 
Wallace   v.   Adams    (143    Fed.    721, 

74  C.  C.  A.  540),  1763.  1764. 
Wallace  V.  Dayton  (—  Dayton,  415), 

1112. 
Wallace    v.    Hall     (22    Kan.    194), 

823. 
Wallering  v.  Congan    (36  W.  L.  B. 
86),  294. 


CXVIU 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Walling   V.    Thomas    (33    Alii.    420, 

31   So.   932),  477a. 
Walton  V.   Perkins    (33   Minn.   357, 

23  N.  W.  527),   1178. 
Walton  V.  Yore   (58  Mo.  App.  565), 

351. 
Walton  V.  Yore   ( 58  ;^^o.  App.  50.") ) , 

73. 
Wamble   v.   Pike    (17   Okla.    122,  87 

Pac.  427),  1170,  1170. 
Ward   V.   Board    (12   Okla.   207,   70 

Pac.  378),   028.  727. 
Ward    V.    Board    (12    Okla.   207,   70 

Pac    378),  89. 
Ward  V.  Racehorn    (103   U.  S.  504. 

41  L.  Ed.  244),   1739, 
Ward   V.   Urmson    (59    N.    W.   97), 

84. 
V.'ardell's  Estate  (57  Cal.  484).  522. 
Warden  v.   Williams    (07  Mich.   50, 

28    N.    W.   796),   453. 
Warden    v.    Jones    (40   Pac.    1071), 

173. 
War  field,    In    re    (22    Cal.    51,    S3 

Am.  Dec.  49),  727. 
Watkins  v.  National   (32  Pac.  914). 

1503. 
Watson   V.    Billings    (32  Ark.   27S), 

509. 
Watson   V.   Key.^tone    (70   Kan.    01, 

78  Pac.   150),   177. 
Watson  V.  Payne    (25   0.    S.   340), 

45. 
Watson  V.   Watson    (0   Conn.   334), 

43. 
Watterson   v.    Urey    (5    C.    C.   47), 

1180. 
Waymire   v.   Staley    (3    Ohio,   300), 

'l38. 
Weaver  v.  Lockwond    ( 2  Kan.  App. 

62,   43   Pac.  311),   59. 
Weaver  v.  Rush    (62  Ark.  51),  560. 
Weaver  v.   Tschetter    ( 1    S.   D.   205, 

46  N.  W.  201 ) ,  987. 
Webb   V.    Harris    (121    Pac.    1083), 

82. 
Weber  v.   King    (7   W.  L.   B.    148), 

138. 
Webb  V.  Smith    (40  Ark.   17),  569, 

593. 
Webb    V.    Thiele     (77    N.    W.    65), 

1142. 


Weeks    v.    Circuit    (73   Mich.   256), 

346. 
Weeks    v.    White     (21     Pac.    600), 

1289. 
Weinmiller    v.    Laughlin     (5    0.    S. 

421),  87. 
Weinmiller    v.    I>aughlin     (51    O.    S. 

421),   91. 
Weinmiller   v.    Laughlin    (54    0.    S. 

21),    1179. 
Weinmiller   v.    Laughlin    (51    O.    S. 

421),  3. 
Weisham   v.    Hocker    (7   Okla.    250, 

54  Pac.  404),  1074,  1075. 
Welch  V.  Henry   (4  Pac.  814),  1563. 
Welles   V.    Yates    (44    X.    Y.    525), 

493. 
Wells   V.   Patton    (50   Kan.    732,   33 

Pac.  15),  33. 
Welsch    V.    Chikls     (17    0.    S.    39), 

89. 
Welsch    V.    Perkins     (8    Ohio,    52), 

159. 
Wellsford    v.    Durst    (8   Kan.    App. 

236,  55  Pac.  493),  70. 
Wescott  V.  Archer   (11  N.  W.  495), 

292. 
Weshall    v.    Hall     (3    Paige,    313), 

487. 
West   V.   Badger    (56   Kan.    298,    43 

Pac.  239),   1018. 
West    V.    James     (51    O.    S.    330), 

136. 
West  V.  Klotz  (37  0.  S.  420),  1010. 
West   V.    Williams    (15    Ark.    083), 

501. 
Western  v.  Herman   (65  Kan.  5,  68 

Pac.    1080),    1020. 
Western    v.    Hymen     (71    Kan.    43, 

80  Pac.  16),   1017. 
Western    v.    Kistler     (97    Pac.    588, 

22    Okla.    222),    2119. 
Western   v.   Kistler    (22   Okla.   222, 

97  Pac.  588),  1761. 
Western    v.    Tiger     (96    Pac.    603), 

1881. 
Westervelt  v.  Hoge  (85  N.  W.  852), 

301. 
Westheimer    v.    Reed     (19    N.    W. 

[Neb.]    626),    157. 
Westinghouse  v.  Tilden    (76  N.   W. 

416),    1292. 


TABLE   OF    CASES. 


CXIX 


[References  are  to  sections,  j 


Westner  v.   O'Brien    (56  Kan.   724, 

44  Pac.   1090),  2G,  56. 
Weston   V.    Long    (66    Pac.    1032), 

29. 
Wetyler    v.    Filch     (52    Cal.    638), 

755. 
Wharton  v.   Stoutenberg    (25  N.  -J. 

Eq.  266),  450. 
Wheat   V.   Railroad    (4   Kan.   370), 

56. 
Wheatland     v.    Dowden     (HO    Pac. 

899),    1177. 
Wheaton  v.  Sutton  (4  Wheat.  503), 

166. 
Wheeler  v.  Walden  (17  Neb.  122,  22 

N.  W.  346),  441. 
Whetstone     v.     Ottawa      (13     Kan. 

320),    456. 
Whitcomb,    In    re    (24    Pac.    1028), 

658. 
White   V.    Brocaw    (14    0.   S.   339), 

1202. 
White  V.  Smith   (33  Pa.  186,  75  Am. 

Dec.   589),   1834. 
White  V.  Friese   (2  C.  S.  C.  R.  30), 

45. 
White  Crow  v.  White  Wing  (3  Kan. 

276),  154. 
Whitehead    v.    Post     (3    W.    L.    M. 

[Ohio]  195),  149. 
Whitehead    v.    Post    (3    W.    L.    M. 

195),  45. 
Whitney  v.  State    (73  N.  W.  696), 

1292. 
Whittaker  v.  Marian  ( 1  Cox's  Case, 

285),   72. 
Whittaker  v.  Marlin   ( 1  Cox's  Case, 

285),  351. 
Whitwell    V.    Emory    (3   Misc.   84), 

84. 
Wichita    v.    Record    (19    Pac.    310), 

317. 
Wicks    V.    Smith     (18    Kan.    508), 

1130. 
Wilber  v.  Harsbargcr   (5  Kan.  App. 

80,  47   Pac.   166),  136. 
Wilbur    V.    Wilbur    (138    111.    446), 

352. 
Wilbur    V.    Wilbur    (138    111.   446), 

73. 
Wiley    V.    Helen    (112    Pac.    158), 
442. 


Wilev    V.    Helen     (112    Pac.    158), 

452. 
Wiley  V.  Lewis    (4  N.  P.  212).  84. 
Wilford   V.   Milford    (5    Kan.    App. 

222,  47  Pac.  175),   154. 
Wilke   V.   Sassen    (123    la.    421,   99 

N.  W.   124),  477a. 
Wilkerson  v.  Mears    (77  Kan.  273, 

94   Pac.   570),   94. 
Wilkinson  v.  Elliott    (43  Kan.  590, 

23  Pac.  614),  70. 
Williams,    In    re     (112    Cal.    521), 

691. 
Williams    v.    Same     (73    Cal.    99), 

680. 
Williams   v.    Board    (74    Kan.    693, 

88  Pac.  70),  64. 
Williams  v.   Bnglebright    (73   0.   S. 

383),  1112. 
Williams    v.    Farmer    ( 13    Okla.    5, 

73   Pac.  269),  317. 
Williams  v.  Johnston  (122  Pac.  48), 

1739. 
Williams  v.  Morehead  (33  Kan.  609, 

7   Pac.   226),   62. 
Williams   v.   Richey    (3   Dill.   406), 

82. 
Williams    v.    Swisher     (65    N.    W. 

788),   301. 
Williams    v.    Tourtelloff    (28    Kan. 

833,  28  Kan.  589),  59. 
Williams  v.  Wilton   (28  0.  S.  451), 

38. 
Williamsburgh  v.  Towne   (32  N.  E. 

1058),   89. 
Williamson  v.  Berry   (42  U.  S.  514, 

12   Fed.   1170),   87. 
Willoughbv  V.  Willoughby  ( 16  Okla. 

546,  85  Pac.  713),  477. 
Wills  V.  Atkinson  (124  Minn.  161), 

1279. 
Wills  V.  Price  (9  Mass.  508),  1201. 
Willis    V.    Farley     (24    Cal.    490), 

757. 
Wilson  V.  Campbell    (88  Pac.  538), 

813. 
Wilson  V.  McCormick  ( 10  Okla.  180, 

€1  Pac.   168),   120. 
Wilson  V.  Morton    (119  Pac.  213), 

1826. 
Wilson   V.   Roggencamp    (12   N.   W. 
811),   38. 


cxx 


TABLE   OF    CASES. 


[References  are  to  sections.] 


Wilson    V.     Same     (86    Ind.    472), 

1114. 
Wilson  V.  Shepherd  (IG  N.  W.  82G), 

302. 
Wilson   V.   Tortotoll    (22   Pac.   11), 

301. 
Wilson  V.  Young    (.19  N.  W.  487). 

809. 
Wilson  V.  Young    (19  N.  W.  487), 

819. 
Wilson   V.   Wilson    (28   0.   S.   451), 

25. 
Wilson  V.  Wood    (10  Okla.  279,  61 

Pac.    1045),   387,   402. 
Wilte  V.  Lockwood    (39  0.  S.  143), 

483. 
Winter,  In  re    (114   Cal.   186),  675. 
Winters  v.  Pavis    (51  Ark.  335,   11 

S.  W.  420),  583. 
Winton   v.    Cornish    (5   Ohio,   477), 

S4. 
Winton    v.   Myers    (8    Okla.   42,   5-^ 

Pac.  634),  300. 
Winton   v.   Myers    (8  Okla.  421,  58 

Pac.  634),  296. 
Wisconsin  v.  Price    (133  U.  S.  496, 

33  L.  Ed.   687),   1748. 
Wise    V.    Martin     (7    K    P.    660), 

294. 
Witch    V.    Smith     (18    Kan.    508), 

1130. 
Witham    v.    Lehmer    (98   Pac.   351, 

22  Okla.  627),  2119. 
Witherspoon    v.    Dimode     (4    Wall. 
210,     18    L.     Ed.     339),     1748, 
1750. 
Witmers'  Appeal    (45  P.  S.  455,  84 

Am.  Dec.   505),   121. 
Wolf  V.  Ham    (28   Kan.  588),  302. 
Wood    V.    Butler    (23    0.    S.    520), 

76. 
Wood  V.  Clute    (1   Sand.  Chy.  Rep. 

202),    1203. 
Wood  V.  Colvin    (5  Hill,  231),  166. 
Wood  V.  Dill    (3  Kan.  App.  484,  43 

Pac.  822),  1020,  1024. 
Wood   V.   Drury    (56   Kan.   409,   43 

Pac.  763),   15G. 
Wood  V.  Wood   (59  Ark.  441),  576. 


Woodbridge    v.    Baning     (14    0.    S. 

328),  1112. 
Woodmen    v.   Bowersfield    (62   Kan. 

867,    62    Pac.    1012),    29. 
Woods  V.  Franks  (67  Cal.  42),  505. 
Woodvvorth,    In   re    (31    Cal.    595), 

691,   693. 
Woodwortli's  Estate    (31   Cal.  595), 

217. 
WoolcofT   V.    Heminger    (96    X.    W. 

[Neb.]     12),    146. 
Worcester  v.  Georgia    (6  Pet.  515), 

1797. 
Work    V.    Welsh     (160    111.    468,    43 

N.  E.  719),  440. 
Worsely  v.  Jolinson    (3   Ark.  761), 

1753. 
Worth   V.   Branson    (98   U.    S.    118, 

25    L.    Ed.   86),    1750. 
Worthington    v.   Woods    (34   N.   W. 

368),    809. 
Worthy  v.   Cooper    (23   Kan.   432), 

806. 
Worthy    T,    Johnson    (8    Ga.    236), 

836. 
Wright  V.   Branson    (98  U.   S.   118, 

25  L.  Ed.  86),  1748. 
Wright  V.  Edwards    (10  Ore.   298), 

836. 
Wright  V.  Kansas  (126  S.  W.  516), 

346. 
Wyche  v.  Green    (32  Ga.  34),  483. 
Wyman    v.    Herrard    (9    Okla.    35, 

50  Pac.  1009),  94,  96. 
Wyman  v.  Herrard   (59  Pac.  1009), 

26. 
Wynans    v.    Gibbs     (30    Pac.    163), 

1562. 


Yarbrough    v.    Spalding    (124    Pac. 

— ),    1297,    1735. 
Yinglin   v.    Redwine    (12    Okla.    64, 

69    Pac.    810),    1074. 
Yoder  v.  Randal   (16  Okla.  308,  83 

Pac.   537,  3   L.   R.   A.   [N.   S.] 

576),    111. 


TABLE   OF    CASES. 


CXXl 


[References  are  to  sections.] 


Young,  In  re   (123  Cal.  337),  679. 
Young  V.   Joseph    (99   X.   W.   522), 

302. 
Young  V.  McWilliams   (89  Pac.  12), 

1120. 
Young   V.    Shellenberger    (41   N.   E. 

518),    114. 
Young  V.  Wood    (83  N.  W.    [Neb.] 

528),  144. 
Youngs  V.  Hefifner    (36  0.  S.  237), 

1201. 


Zahn  V.  Obert   (103  Pac.  704),  803. 
Zashenosky    v.    Voliaith    (59    0.    S. 

540),    157. 
Zelle,  In  re    (74   Cal.   125),   691. 
Zimmerman  v.  Barnes  (56  Kan.  419, 

43  Pac.  764),  56. 
Zufall   V.   Peyton    (110   Pa<j.   773), 

231. 


MERWINE'S 

TRIAL  OF  TITLE 

TO  LAND 


CHAPTER   L 

PROCEDURE  BY  WHICH  THE  COURT  ACQUIRES  POWER 

TO  TRANSFER  REAL  ESTATE  FROM  ONE 

PERSON  TO  ANOTHER— JURISDICTION. 


SECTTOX 

1.  Preliminary  statement. 

2.  Duty    of    counsel    and    court    in 

proceedings  for  sale  or  trans- 
fer of  real  estate  by  judicial 
process. 

3.  Jurisdiction  of  courts — Judicial 

sale — Proceedings,  sale  void 
without. 

4.  Jurisdiction — Provisions    of   the 

Constitution  as  to. 

5.  Jurisdiction — Creation   of   supe- 

rior court. 

6.  Jurisdiction  of  superior  court — 

Proceedings  in — Custer  County 
Superior  Court. 

7.  Jurisdiction  —  County  courts — 

Procedure  in. 

8.  Jurisdiction — District  court. 


10 


11 


SECTION 

9.  Probate      jurisdiction      of     the 

county  court. 
Proceedings  of  county  court,  how 

construed — Effect  of  its  process 

and  judgment. 
The     issuance     and     service     of 

process  in  the  county  court. 

12.  Under   substitution   of   jurisdic- 

tion, rights  remain  the  same. 

13.  !May   exercise  what   powers   out 

of  court. 

14.  Where  wills-  may  be  proved  and 

testamentary    letters   must   be 

granted. 
Other    instances    of   jurisdiction 

of   county  other  than  that  of 

the  residence  of  decedent. 
County  in  which  application  is 

first  made — Jurisdiction. 


15. 


16. 


Sec.  1.     Preliminary  statement. 

As  the  purpose  of  this  work  is  to  set  forth  the  law  and 
procedure  in  Oklahoma  by  which  title  to  real  estate  is  trans- 
ferred from  one  person  to  another  by  act  of  parties,  or  order 


§  2  merwine's  trial  of  title  to  land,  2 

of  the  court,  or  judicial  sale,  and  the  procedure  in  all  the 
forms  of  litigation  concerning  real  estate,  only  so  much  of  the 
law  of  pleading  and  practice  as  pertains  to  the  giving  or  trans- 
ferring of  title  in  such  actions  or  proceedings,  will  be  set  forth 
in  this  book.  For  the  rules  of  law  and  of  code  pleading  ap- 
plicable to  such  actions  or  procedure,  reference  must  be  had 
to  the  proper  textbooks  on  this  subject.^ 

Sec.  2.     Duty  of  counsel  and  court  in  proceedings  for  sale  or 
transfer  of  real  estate  by  judicial  process. 

Much  of  the  practice  and  procedure  by  which  real  estate  is 
transferred  from  one  person  to  another  by  order  of  court,  or 
judicial  sale,  is  of  such  a  nature  as  to  lead  counsel  who  may 
be  conducting  the  proceedings  to  think  it  does  not  require 
any  particular  care  or  attention.  Frequently,  counsel  and 
courts  are  imbued  with  the  notion  that  the  work  connected 
therewith  is  comparatively  easy  and  does  not  require  any 
great  care  or  deliberation  from  their  hands.  Carelessness 
upon  the  part  of  such  counsel  and  such  courts  in  such  actions 
has  been,  and  is  now,  the  source  of  many  defective  land  titles 
in  this  State,  and  is  now,  and  has  been,  the  source  of  much 
vexatious  and  expensive  litigation.  Because  actions  of  this 
character  are  seldom  contested,  the  petition  is  carelessly  pre- 
pared, orders  are  asked  for  and  given  without  investigation 
by  the  courts,  parties  are  not  properly  served  and  brought  into 
the  case.  The  examiner  of  real  estate  title  in  this  State,  when 
scrutinizing  title  passing  through  the  courts,  knowing  how 
careless  counsel  is  apt  to  be  in  cases  of  this  character,  should 
scrutinize  the  proceedings  from  the  filing  of  the  petition  to 
the  deed  to  the  purchaser  with  the  most  careful  attention.  Too 
much  cannot  be  urged  on  the  bench  and  bar  of  this  State  to 
attend  to  such  proceedings  with  the  utmost  care.  The  follow- 
ing upon  this  topic  is  from  the  pen  of  an  eminent  jurist  and 
text-writer : 

iKinkead's  Code  Pleading;  Kin-  Practice,  Parties  and  Forms;  Whit- 
kead's    Practice;     Bates'    Pleading,       taker's   Forms. 


3  POWER  TO  TRANSFER  REAL  ESTATE. — JURISDICTION,  §  2 

"While  it  is  manifestly  the  policy  of  the  law  to  uphold  judi- 
cial sales  made  without  fraud,  so  as  not  to  deter  purchasers 
by  encouraging  the  apprehension  that  their  substantial  rights 
and  interests  may  be  sacrificed  to  technical  considerations — 
while  courts  will  give  every  effect  to  insure  the  protection  of 
innocent  purchasers  in  collateral  proceedings,  even  in  cases 
of  gross  errors  arising  out  of  blunders  or  carelessness  of  the 
probate  courts  or  their  officers — it  is  apparently  of  the  gravest 
importance  that  every  step  taken  in  the  subjecting  of  real 
estate  to  sale  by  courts  be  as  nearly  as  possible  in  literal  com- 
pliance with  the  method  pointed  out  by  the  statute  upon  which 
the  proceeding  is  based.  Where  particular  forms  are  ap- 
pointed for  the  execution  of  a  power,  however  immaterial  they 
may  appear  in  themselves,  that  cannot  be  dispensed  with.  It 
is  pernicious  error,  and  fruitful  of  trouble  and  mischief  to 
suppose  that  any  vague,  imverified  statement  of  circumstances 
is  sufficient  to  authorize  a  sale  of  real  estate,  if  the  applicant 
and  the  judge  know  all  about  the  matter;  or  that  the  good 
faith  and  honesty  with  which  the  application  is  made  are 
sufficient  to  safeguard  against  ruinous  complications  and  liti- 
gation that  may  follow  oversight  and  mistake.  The  anxiety 
of  courts  to  vindicate  the  validity  of  judicial  sales  should  not 
be  relied  upon  as  a  pretext  for  the  carelessness  of  counsel  and 
courts,  and  guardians,  executors,  administrators,  trustees  in 
bankruptcy,  assignees  for  the  benefit  of  creditors,  receivers  of 
courts,  or  the  supineness  of  probate  courts  in  the  several  steps 
necessary  for  the  sale  of  real  estate.  Even  if  the  sale  should 
be  good  as  against  collateral  attack— and  it  is  distressingly 
uncertain  as  to  what  extent  the  trial  and  appellate  courts  will 
go  in  this  direction — yet,  many  acts  of  commission  and  omis- 
sion which  wall  not  be  allowed  to  invalidate  the  transaction 
in  collateral  investigation  may,  in  a  direct  proceeding,  subject 
such  parties  and  representatives  to  serious  liability  and  the 
estate  to  loss  and  delay,  and  all  parties  concerned  to  vexatious 
and  ofttimes  ruinous  litigation.  No  part  of  the  work  of  such 
representatives  claims  more  careful  attention,  and  demands 
more  imperatively,  the  advice  and  assistance  of  a  competent 


R'3  merwine's  trial  of  title  to  land.  4 

professional  man  than  his  relations  to  and  duties  concerning 
the  real  estate  of  a  decedent  and  the  real  estate  of  minors  and 
incompetents."  ^ 

Sec.  3.  Jurisdiction  of  courts — Judicial  sale — Proceedings,  sale 
void  without. 
In  the  examination  of  title  to  real  estate  sold  under  judicial 
decree,  one  of  the  most  important  inquiries  is:  Has  everyone 
who  had  an  interest  in  the  property  at  the  time  suit  was  begun 
been  brought  into  the  case  by  summons  or  other  proper  notice, 
and,  if  so,  did  the  court  make  the  proper  order  necessary  to 
divest  him  of  his  title  thereto?  It  is  elementary  that  every- 
one must  have  his  day  in  court.  A  court  has  no  power  to 
pass  upon  anyone's  property  rights  without  giving  him  a 
chance  to  be  heard.^ 

Any  order  as  to  the  rights  of  anyone  in  real  estate  sought 

to  be  sold  by  the  court,  though  he  may  be  a  party  defendant 

who  has  not  been  served  with  summons,  or  has  not  entered 

his  appearance  by  some  method  pointed  out  by  law,  is  void 

as  to  such  party.     He  may  assert  his  rights  at  any  time  and 

in  any  manner,  unless  barred  by  limitation  of  time.     Counsel 

conducting  any  proceeding  in  which  real  estate  is  sold  should 

use  the  utmost  diligence  in  searching  the  records  of  title  to 

the  real  estate  sought  to  be  sold,  to  secure  the  names  of  any 

lienholders,  whether  by  mortgage,  judgment,  mechanic's  lien 

or  liens,  or  any  other  kind,  whether  by  attachment,  foreign 

execution,  vendor's,  and  everyone  claiming  an  interest  in  the 

title  thereto,   and  every  such  person  holding  such   claim  or 

interest  in  the  title  thereto,  should  be  made  a  party  defendant, 

and  be  required  to  set  forth  such  lien  or  interest.    The  petition 

should  ask  that  they  do  this  upon  penalty  of  having  their 

2Woerner       on       Administration,  adjudged  until  he  has  had  his  day 

2021.  in  court  and  has  had  an  opportunity 

3  It    is    an    elementary    principle  to  be  heard.     Trimble  v.  Longworth, 

that    no    man's     rights    should    be  13   0.  S.  438. 


5  POWER  TO  TRANSFER  REAL  ESTATE. — JURISDICTION.  §  3 

lien  or  interest  in  the  real  estate  barred  by  order  of  court.  If 
the  lien  or  interest  of  any  such  claimant  be  invalid  the  petition 
should  so  allege,  else  such  interest,  in  case  of  default  to  answer, 
would  be  a  cloud  on  the  title,  and  would  frighten  away  pur- 
chasers at  the  sale.* 

After  such  persons  who  hold  any  interest  of  record  (and 
not  of  record,  if  the  plaintiff  has  had  notice  of  their  interest), 
have  been  made  parties  to  the  action,  counsel  must  then  have 
each  of  them  served  in  the  manner  pointed  out  by  law,  and 
the  record  should  show  the  manner  of  service.  Too  much  care 
cannot  be  exercised  in  respect  to  the  rights  of  infants,  or 
insane,  or  other  defendants  imder  guardianship  where  the 
action  is  for  the  purpose  of  a  sale  of  their  lands.  Service  of 
summons  upon  them  should  be  made  as  required  by  the 
statute.^ 

As  to  them,  if  the  statute  is  not  followed,  their  rights  re- 
main in  the  real  estate  unaffected  by  any  order  of  court,  and 
unaffected  by  any  judicial  sale  of  their  real  estate.  In  case 
of  any  irregularity  of  proceeding,  there  is  no  presumption  to 
aid  the  record.  Again,  counsel  should  see  to  it  that  the  court 
in  which  he  brings  his  action,  has  jurisdiction  to  do  what  is 
asked.  If  the  court  has  no  jurisdiction  of  the  subject-matter, 
then  the  purchaser  of  the  real  estate  takes  no  title,  and  the 
person,  or  persons,  whose  real  estate  is  sought  to  be  sold, 
can,  at  any  time,  take  possession  of  the  same.  The  order  of 
the  court  in  such  case  affords  no  protection.  The  judgment 
of  a  court  without  jurisdiction,  is  an  absolute  nullity.*^ 

4  strobe  V.  Downer,  13  Wis.  10;  e  Pennywit  v.  Foote,  27  0.  S.  600; 
Southward  v.  Jamison,  G6  0.  S.  Spear  v.  Corll,  33  0.  S.  236;  Gilli- 
311-  Koobch  V.  Mixer,  52  0.  S.  207;  land  v.  Sellars,  2  O.  S.  223;  Moore 
Spoors  V.  Coen,  44  0.  S.  497;  Mon-  v.  St<irks,  1  O.  S.  369;  Fleischman 
day  V.  Vail,  43  X.  Y.  L.  418;  Black  v.  Walker,  91  111.  318;  Santon  v. 
on"  Jud-ments,  Sec.  184;  Freeman  Ballard,  133  Mass.  46;  St.  Louis 
on  Judgments,  Sec.  158.  v-  Coal  Co.,  Ill  111.  32;  Weinmiller 

5  When  the  writ  shows  affirma-  v.  Laughlin,  51  0.  S.  421;  Adams 
tively  that  infants  were  not  served  v.  Jeffries,   12   Ohio,  253. 

the    decree    as    to    them,     is    void. 
Moore  v.  Starks,  1  0.  S.  369. 


§  4  merwine's  trial  of  title  to  land.  6 

Sec.  4.     Jurisdiction — Provisions  of  the  Constitution  as  to. 

The  followiiig  are  the  constitutional  provisions  as  to  the 
jurisdiction  of  the  district  and  county  courts  in  this  State,  and 
the  provisions  as  to  trial  by  jury. 

(a)  The  county  court,  coextensive  with  the  county,  shall 
have  original  jurisdiction  in  all  probate  matters,  and  until 
otherwise  provided  by  law,  shall  have  concurrent  jurisdiction 
with  the  district  court  in  civil  cases  in  any  amount  not  exceed- 
ing one  thousand  dollars,  exclusive  of  interest :  Provided,  that 
the  county  court  shall  not  have  jurisdiction  in  any  action  for 
malicious  prosecution,  or  in  any  action  for  divorce  or  alimony, 
or  in  any  action  against  officers  for  misconduct  in  office,  or  in 
actions  for  slander  or  lil)el,  or  in  actions  for  the  specific  per- 
formance of  contracts  for  the  sale  of  real  estate,  or  in  any 
matter  wherein  the  title  or  boundaries  of  land  may  be  in  dis- 
pute or  called  in  question;  nor  to  order  or  decree  the  par- 
tition or  sale  of  real  estate,  not  arising  under  its  probate 
jurisdiction.^ 

(J))  The  district  court  shall  have  original  jurisdiction  in 
all  cases,  civil  and  criminal,  except  where  exclusive  jurisdic- 
tion is  by  this  Constitution,  or  by  law,  conferred  on  some  other 
court,  and  such  appellate  jurisdiction  as  may  be  provided  in 
this  Constitution  or  by  law.® 

In  all  issues  of  fact  joined  in  any  court,  all  parties  may 
waive  the  right  to  have  the  same  determined  by  jury ;  in  which 
case,  the  finding  of  the  judge  upon  the  facts,  shall  have  the 
force  and  effect  of  a  verdict  by  jury.® 

In  all  jury  trials,  the  jury  shall  return  a  general  verdict, 
and  no  law  in  force,  nor  any  law  hereafter  enacted,  shall 
require  the  court  to  direct  the  jury  to  make  findings  on  par- 
ticular questions  of  fact ;  but  the  court  may,  in  its  discretion, 
direct  such  special  findings. ^'^ 


7  Art.  7,  Sec.  12,   Constitution  of  9  Art.   7,  Sec.  20,  Constitution  of 
Oklahoma.                                                        Oklahoma. 

8  Art.  7,  Sec.  10,  Constitution  of  lo  Art.  7,  Sec.  21,  Constitution  of 
Oklahoma.                                                     Oklahoma. 


7  POWER  TO  TRANSFER  REAL  ESTATE. — JURISDICTION.       §§  5-7 

Sec.  5.     Jurisdiction — Creation  of  superior  court. 

There  is  created  and  established  in  every  county  in  this 
State  having  a  population  of  thirty  thousand  or  more,  and 
having  a  city  therein  with  eight  thousand  or  more,  as  now  or 
hereafter  shown  by  the  last  Federal  census,  a  court  of  civil 
and  criminal  jurisdiction,  coextensive  with  the  county,  to  be 
known  as  the  superior  court  of  such  county,  which  shall  be  a 
court  of  record,  and  the  said  superior  court  will  be  held  in 
the  largest  city  of  said  county.^^ 

Sec.  6.  Jurisdiction  of  superior  court — Proceedings  in— Custer 
County  Superior  Court. 

Every  such  court  shall  have  and  exercise  concurrent  juris- 
diction with  the  district  court,  in  all  proceedings,  causes  or 
matters,  and  concurrent  jurisdiction  with  the  county  court  in 
all  civil  and  criminal  matters  except  matters  of  probate. 

There  is  created  and  established  in  the  city  of  Clinton, 
Custer  County,  Oklahoma,  a  court  of  civil  and  criminal  juris- 
diction, coextensive  with  the  county,  to  be  known  as  the 
superior  court  of  such  county,  which  is  a  court  of  record,  and 
exercises  the  same  jurisdiction  as  provided  by  law  for  other 
superior  courts  of  this  State :  Provided,  that  the  city  of  Clin- 
ton shall  furnish,  free  of  cost,  a  suitable  building  for  said 
court.^- 

Sec.  7.    Jurisdiction — County  courts— Procedure  in. 

The  Legislature  has  provided  that  county  courts,  in  their 
respective  counties,  have  such  jurisdiction  and  exercise  such 
powers  as  have  been  conferred  upon  them  by  the  Constitu- 
tion of  the  State,  and  have  such  other  jurisdiction  and 
powers  as  are  herein  conferred,  or  may  be  conferred  by  law.'' 

It  is  further  enacted  that  the  county  court,  coextensive 
with    the    county,    has    original    jurisdiction    in    all    probate 

11  Snyder,  1,965;  Act  of  March  6,  1=  Snyder,  1,970;  Act  of  March  12, 


1909. 


1910. 


13  Act  approved  June  4,   1908. 


§§8,9  merwine's  trial  of  title  to  land.  8 

matters,  shall  have  concurrent  jurisdiction  with  the  district 
court  in  civil  cases  in  any  amount  over  two  hundred  dollars 
and  not  exceeding  one  thousand  dollars,  exclusive  of  interest: 
Provided,  that  the  county  court  shall  not  have  jurisdiction 
in  any  action  for  malicious  prosecution,  or  in  any  action  for 
divorce  or  alimony,  or  in  any  action  against  officers  for  mis- 
conduct in  office,  or  in  actions  for  slander  or  libel,  or  in 
actions  for  the  specific  performance  of  contracts  for  the 
sale  of  real  estate,  or  in  any  matter  where  the  title  to  land 
may  be  in  dispute  or  called  in  question;  nor  to  order  or 
decree  the  partition  or  sale  of  real  estate,  not  arising  under 
its  probate  jurisdiction." 

It  has  been  held  by  the  Supreme  Court  of  this  State  that 
the  original  jurisdiction  of  county  courts  in  civil  cases,  in 
any  amount,  not  exceeding  one  thousand  dollars,  conferred 
by  section  twelve  of  article  seven  of  the  Constitution  of  this 
State,  was  not  changed  by  sections  one  and  two  of  the  Act  of 
July  four,  nineteen  hundred  and  eight  so  as  to  deprive  said 
court  of  jurisdiction  where  the  amount  involved  did  not 
exceed  two  hundred  dollars. t 

For  the  trial  of  all  civil  causes  now  or  hereafter  pending 
in  any  county  court,  the  pleading,  practice  and  procedure  is 
required  to  be  the  same  as  that  of  the  district  court.* 

Sec.  8.    Jurisdiction — District  court. 

The  district  court  has  original  jurisdiction  in  all  cases,  civil 
and  criminal,  except  where  exclusive  jurisdiction  is  by  this 
Constitution,  or  by  law,  conferred  on  some  other  court,  and 
such  appellate  jurisdiction  as  is  provided  by  law.^^ 

Sec.  9.    The  probate  jurisdiction  of  the  county  court. 

The  county  court  has  jurisdiction,  and  the  judge  thereof 
power,  which  must  be  exercised  in  the  cases,  and  in  the 
manner  prescribed  by  the  statute: 

i4Act  approved  March  9,  1910.  *  Act  of  February  20,  1908. 

t  Cooper  V.  Austin,  30  Okla.  297,  is  Art.  7,  Sec.  10,  Constitution  of 

119  Pac.  206.  Oklahoma. 


9  POWER  TO  TRANSFER  REAL  ESTATE, — JURISDICTION.  §  10 

(a)  To  open  and  to  receive  proof  of  last  wills  and  testa- 
ments, and  to  admit  them  to  proof,  and  to  revoke  the  pro- 
bate thereof,  and  to  allow  and  record  foreign  wills. 

(6)  To  grant  letters  testamentary,  and  of  administration 
and  of  guardianship,  and  to  revoke  the  same. 

(c)  To  appoint  appraisers  of  estates  of  deceased  persons. 

(d)  To  compel  executors,  administrators  and  guardians  to 
render  accounts. 

(e)  To  order  the  sale  of  property  of  estates,  or  belonging 
to  minors. 

(/)    To  order  payment  of  debts  due  from  estates. 

(g)  To  order  and  regulate  all  distribution  of  property  or 
estates  of  deceased  persons. 

(/i)  To  compel  the  attendance  of  witnesses  and  the  produc- 
tion of  title  deeds,  papers,  and  other  property  of  an  estate, 
or  of  a  minor. 

(i)  To  exercise  all  of  the  powers  conferred  by  this  chapter 
or  by  other  law. 

(j)  To  make  such  orders  as  may  be  necessary  to  the  exer- 
cise of  the  powers  conferred  upon  it. 

(k)  To  appoint  and  remove  guardians  for  infants,  or  for 
persons  insane  or  otherwise  incompetent;  to  compel  payment 
and  delivery  by  them  of  money  or  property  belonging  to 
their  wards,  to  control  their  conduct  and  settle  their  ac- 
counts.^® 

Sec.  10.  Proceeding's  of  county  court,  how  construed — Effect 
of  its  process  and  judgments. 
The  proceedings  of  the  county  court  are  construed  in  the 
same  manner,  and  with  like  intendments,  as  the  proceedings 
of  courts  of  general  jurisdiction,  and  to  its  records,  orders, 
judgments  and  decrees,  there  are  accorded  like  force,  effect 
and  legal  presumption  as  to  the  records,  orders,  judgments 
and  decrees  of  the  district  court." 

16  Snyder,    5,136;     Wilson,    1,477.  it  Snyder,    5,137;    Wilson,    1,478; 

Since  the  forejioing  was  written  the  S.    D.    Sec.   26,   Probate    Code,    sim- 

Supreme    Court    of    this    State    has  ilar;     Ward    v.    Commissioners,     12 

decided   that   tlie   district  court   has  Okla.  257,  70  Pac.  378;   Phillips  v. 

jurisdiction    to   entertain   an    action  Phillips,  13  S.  D.  231,  S3  ^-  W.  94; 

for  any  sum  less  than  two  hundred  Matson     v.     Swenson,     58     N.     W. 

dollars.      Dallas    v.    Pritchard,    115  (S.   D.)    570. 
Pac.    Ill;     Stanford    v.    Pritchard, 
115  Pac.  HI. 


§§  11-14  merwine's  trial  of  title  to  land.  10 

Sec.  11.     The  issuance  and  service  of  process  in  the  county 
court. 

All  process  issued  by  the  county  court  must  be  served  in 
the  same  manner,  and  by  the  persons  and  officers  as  provided 
for  the  service  of  process  in  the  district  court,  with  the  same 
fees.^* 

Sec.  12.  Under  substitution  of  jurisdiction  rights  remain 
same. 
Under  the  substitution  or  transfer  of  jurisdiction  provided 
in  under  the  act  approved  ]\Iarch  twenty-second,  nineteen 
hundred  and  nine,  the  law  and  the  rights  of  parties  shall  in 
all  other  respects  be  and  remain  the  same ;  and  if,  before 
the  issues  so  transferred  are  decided,  or  the  administration 
of  such  estate  is  closed,  another  person  be  elected  or  ap- 
pointed and  qualified  as  judge  of  the  county  court,  who  is 
not  disqualified  to  act  in  the  settlement  of  the  estate,  he 
must  resume  full  jurisdiction  of  the  case.'^ 

Sec.  13.     May  exercise  out  of  court  what  powers. 

A  judge  of  the  county  court,  as  contradistinguished  from 
the  county  court,  may  exercise  out  of  court  all  the  powers 
expressly  conferred  upon  him  as  a  judge.-'' 

Sec.  14.  Where  wills  must  be  proved  and  letters  testa- 
mentary must  be  granted. 

Wills  must  be  proved  and  letters  testamentary  or  of  admin- 
istration granted: 

(a)  In  the  county  of  which  decedent  was  a  resident  at 
the  time  of  his  death,  in  whatever  place  he  may  have  died. 

(&)  In  the  county  in  which  the  decedent  may  have  died, 
leaving  estate  therein,  he  not  being  a  resident  of  the  State. 

(c)  In  the  county  in  which  any  part  of  the  estate  may  be, 
the  decedent  having  died  out  of  the  State,  and  not  resident 
thereof  at  the  time  of  his  death. 

18  Snyder,  .5,138;  Wilson,  1,497.  20  Snyder,  5,141;   Wilson,  1,482, 

19  Snyder,  5,140;   Wilson,  1,481. 


11  POWER  TO  TRANSFER  REAL  ESTATE. — JURISDICTION.§§  15,  16 

(d)  In  the  county  in  which  any  part  of  the  estate  may 
be,  the  decedent  not  being  a  resident  of  the  State,  but  dying 
within  it,  and  not  leaving  estate  in  the  county  in  which  he 
died. 

(e)  In  all  other  cases,  in  the  county  where  applications 
for  letters  is  first  made.^^ 

Sec.  15.     Other  instances  of  jurisdiction  of  county  other  than 
that  of  residence  of  decedent. 

When  the  estate  of  decedent  is  in  more  than  one  county,  he 
having  died  out  of  the  State,  and  not  having  been  a  resident 
thereof  at  the  time  of  his  death,  or  being  such  nonresident, 
and  dying  within  the  State,  and  not  leaving  estate  in  the 
county  where  he  died,  the  county  court  of  that  county  in 
which  application  is  first  made  for  letters  testamentary  or 
of  administration,  has  exclusive  jurisdiction  of  the  settle- 
ment of  the  estate.-- 

Sec.  16.  County  in  which  application  is  first  made — Juris- 
diction. 
The  county  court  of  the  county  in  which  application  is  first 
made  for  letters  testamentary  or  of  administration  in  any  of 
the  cases  above  mentioned,  shall  have  jurisdiction  coextensive 
with  the  State  in  the  settlement  of  the  estate  of  the  decedent 
and  the  sale  and  distribution  of  his  real  estate,  and  excludes 
the  jurisdiction  of  the  county  court  of  every  other  county. 

21  Snyder,  5,142;  Wilson,  1,483.  23  Snyder,  5,144;  Wilson,  1,485. 

22  Snyder,  5,143;  Wilson,  1,484. 


23 


CHAPTER  II. 

THE  PROCEDURE  BY  WHICH  THE  COURT  ACQUIRES 
POWER  TO  TRANSFER  REAL  ESTATE  FROM  ONE 
PERSON   TO   ANOTHER— VENUE   OF   THE   ACTION. 

SECTION  SECTION 

17.  Actions   local   and   transitory.  22.  Venue — The  action  against  a  do- 

18.  Venue — Ejectment  —  Quiet  title  nicstic  cor|)oration  other  than 

— Partition — For   sale   of   real  an  insurance  company, 

property.  23.  Venue — Actions    against    trana- 

19.  Venue — What    must    appear    in  portation       or       transmission 

the  pleading  as  to.  companies  —  Turnpike     road 

20.  Venue — Real  projjerty  in  one  or  companies. 

more   tract*    in    two   or    more  24.  Venue — Where  domestic  charter 

counties   —   Action     may     be  provides  place  for  suit, 

brought  in  eitlier — ^Specific  per-  25.  Venue — Tlie     action     agains.t     a 

forniance.  nonresident  or  foreign  corpora- 

21.  Venue — Actions   against   officers  tion. 

must  be   brought  where   cause       26.  Venue — Where    every   other    ac- 
of  action  arose,  except.  tion  must  be  brought. 

27.  Venue — The   action  for   divorce. 

Sec.  17.     Actions  local  and  transitory. 

The  division  of  actions  into  local  and  transitory  was  accord- 
ing to  the  common  law  practice.  In  order  to  understand  the 
provisions  of  our  code  as  to  the  venae  of  actions,  it  is  neces- 
sary to  keep  in  mind  these  commoL  law  names.  An  eminent 
judge  of  another  state,  whose  code  is  almost  identical  with 
ours,    has    said : 

"In  all  cases  under  our  system  it  would  seem  that  where 
the  action  is  personal,  and  for  the  recovery  of  debt  or  dam- 
ages merely,  unless  otherwise  expressly  provided  by  statute, 
the  appropriate  county  in  which  to  exercise  jurisdiction  is 
the  county  in  which  the  defendant  may  be  found,  so  that 
process  can  be  served  upon  him.  It  is  not  material  that  he 
be  a  resident  of  the  particular  county;  it  is  sufficient  if  he 
be  found  within  it  so  that  the  process  can  be  legally  served. 

12 


13  TRANSFER    OF    REAL    ESTATE. — VENUE    OF    ACTION.  §  18 

By  such  service,  the  court  from  which  the  process  was  issued, 
obtains  jurisdiction  of  the  person  of  the  defendant,  and, 
having  jurisdiction  of  the  subject-matter  of  the  controversy, 
can  proceed  with  the  case. 

"Considering  all  the  legislation  of  the  State  upon  this 
subject  of  jurisdiction,  we  entertain  the  opinion  that  it  is 
the  person  of  the  defendant  which  gives  the  court  jurisdiction 
in  a  particular  case  so  far  as  locality  is  concerned.  And,  as 
the  defendant  cannot  be  compelled  to  answer  in  any  other 
county  except  the  one  in  which  he  is  served  with  process, 
except  in  some  few  specific  cases,  he  must  be  held  to  answer 
there,  provided  the  action  is  personal,  and  sounds  merely  in 
debt  or  damages,  that  such  actions  must,  in  this  State,  be 
considered  as  transitory."^ 

A  local  action  has  been  defined  to  be  an  action  that  must 
be  prosecuted  in  the  county  where  the  land  lies;  and  the 
definition  for  a  transitory  action  is,  an  action  that  can  be 
prosecuted  in  any  county  where  the  defendant  can  be  sum- 
moned." 

Sec.  18.  Venue — Ejectment — Quiet  title — Partition — For  sale 
of  real  property. 

Actions  for  the  following  causes  must  be  brought  in  the 
county  in  which  the  subject  of  the  action  is  situated,  except 
as  provided  in  the  next  section : 

(a)  For  the  recovery  of  real  property,  or  of  any  estate 
or  interest  therein,  or  the  determination  in  any  form,  of  any 
such  right  or  interest. 

(&)    For  the  partition  of  real  property. 

(c)  For  the  sale  of  real  property  under  a  mortgage,  lien, 
or  other  incumbrance  or  charge. 

1  Hitchcock,  J.,  in  Gcnin  v.  Greer,  Pac.   785;   Chicago  v.  Wynkoop,   85 

10  Ohio    214.  P^^-   595;   Rhoades  v.   Rhoades,   111 

2Genin  v.  Greer,  10  Ohio,  211;  N.  W.  (Neb.)  122;  Morris  v.  Lin- 
State  V.  Fox,  60  O.  S.  349;  see,  also,  ton,  104  N.  W.  (Neb.)  927;  Jacob- 
Neal  V.  Reynolds,  38  Kan.  435,   16  sin  v.  Lynn,  75  N.  W.    (Neb.)    243. 


§  18  merwine's  trial  of  title  to  land.  14 

(d)  To  (luiet  title,  or  to  establish  a  trust  in,  remove  a 
cloud  on,  set  aside  a  conveyance  of,  or  to  enforce  or  set  aside 
an  agreement  to  convey  real  property."* 

An  action  was  begun  in  this  county  praying  for  an  in- 
junction to  restrain  the  defendant  in  anotiier  county  from 
closing  up  a  riglit  of  ^vay  between  their  farms.  The  defendant 
in  the  other  county  entered  his  api)earance  and  waived  the 
service  of  summons  by  a  paper  not  on  the  back  of  the  sum- 
mons nor  on  the  petition.  The  defendant  filed  an  answer 
thereafter,  for  the  sole  purpose  of  objecting  to  the  jurisdic- 
tion of  the  court,  in  which  he  alleged  that  he  was  not  a 
resident  of  this  county,  and  had  not  been  served  with  sum- 
mons, and  prayed  that  the  action  be  dismissed  for  want  of 
jurisdiction.  To  this  a  reply  was  filed,  alleging  that  the 
defendant  had  entered  his  voluntary  appearance  in  writing. 
Upon  a  demurrer  to  this  reply,  the  court  held  the  reply  a 
sufficient  defense,  and  the  Supreme  Court  of  the  State  sus- 
tained the  decision.* 

In  another  case  in  an  action  in  the  nature  of  a  creditor's 
bill,  brourlit  in  this  county,  it  was  held  that  the  interest 
of  a  defendant  in  real  estate  located  in  another  county, 
cannot  be  reached  by  the  court  in  such  action,  and  the  de- 
fendant cannot  be  required  to  answer  as  to  his  interest  in 
such  land,  and  have  his  interest  therein  determined  by  the 
court  in  such  action.^ 

In  proceedings  for  the  foreclosure  of  a  mortgage,  either 
under  the  old  chancery  practice  or  under  the  new  procedure, 
service  of  summons  could  be  made  on  the  defendant  in  the 
county,  and  in  none  other  than  that  in  which  the  lands  were 
situated,  and  the  action  brought,  and  in  actions  asking  for 
the    foreclosure,    and    also    a    personal    judgment    under    the 

3  Snyder,  5,580;   Act  of  April  28,  does  not  have  the  paragraph  in  the 

1908;    Kansas,    4,476    (1901),   iden-  statute  above  marked    (d). 

tical;  Nebraska,  1,050   (1907),  iden-  4  Traver   v.    Baker,    38    W.    L.    B. 

tical;    Ohio  Gen.   Code,   Sec.    11,268  (Ohio),   273. 

(1910),    identical,    except    the    last  s  Dwell e     v.     Hinde,      18     C.     C. 

subdivision  thereof;    the  Ohio  Ck)de  (Ohio),    618;    see,    also,    Butler    v. 

Birkey,  13  0.  S.  616. 


15  TRANSFER    OF    REAL    ESTATE. VENUE    OF    ACTION.  §  18 

statute,  the  venue  being  fixed  by  statute,  summons  may 
properly  be  served  on  the  defendant  in  any  county  of  the 
State.« 

It  was  held  in  a  nisi  prius  ease  that  an  action  whose  objects 
were:  (1)  To  have  a  trust  fastened  on  a  tract  of  land.  (2)  To 
have  an  absolute  deed  on  its  face,  declared  a  mortgage.  (3) 
To  enforce  the  right  of  plaintiff  to  redeem  the  mortgage,  and 
(4)  to  have  the  land  thereupon  conveyed  to  him  as  in  an 
action  to  recover  real  estate  or  any  interest  therein,  it  may 
and  should  be  brought  in  the  county  where  the  defendant 
resides,  and  not  in  another  county  where  the  land  is  situated.^ 

An  action  begun  to  enforce  a  stockholder's  liability  under 
the  statute,  is  not  rightly  brought  within  the  county  within 
the  meaning  of  the  statute,^  when  none  of  the  defendants 
resided,  or  could  be,  or  were  summoned  here,  although  one 
of  them  indorsed  on  the  summons  issued  for  him  to  the 
sheriff  of  this  county,  and  mailed  to  him  by  plaintiff's  at- 
torney, at  his  residence  in  another  county,  his  acceptance  of 
service  and  entry  of  appearance.  In  the  case  in  which  the 
last  proposition  was  the  syllabus,  the  court  said: 

"It  will  be  observed  that  it  is  provided  that  when  the 
court,  in  any  county,  obtains  jurisdiction  of  a  defendant, 
summons  may  issue  to  other  counties  for  other  defendants, 
hut  irhcn  tlic  action  is  rightly  brought,  according  to  the  stat- 
ute, i.  c,  in  the  county  where  a  defendant  resides  or  may  be 
compelled  to  appear.  It  is  manifest  that  an  action  may  not 
be  so  rightly  brought  that  the  court  may  obtain  jurisdiction 
by  consent  of  all  entitled  to  object.  But  was  it  the  intention 
of  the  Legislature  to  permit  one  to  consent  for  all?  Surely, 
this  would  open  the  door,  especially  in  such  cases  as  this, 
to  the  evils  deprecated  so  strongly  in  another  case,  Allen  v. 
Miller,  11  0.  S.,  314. 

"If  it  be  said  that  a  willing  defendant  may  accomplish  the 
same  thing  by  coming  into  the  county  so  as  to  permit  service, 

eMaholm    v.    Marshall,    29    0.    S.  7  Kraner  v.  Forrester,  42  W.  L.  B. 

616;    Chatman  v.   Bolton   Steel  Co.,        (Ohio),  199. 

4  C.  C.   (Ohio),  242.  s  Ohio  Gen.  Code,  Sees.  11,282  and 

11,284. 


§  18  MERWINE  'S   TRIAL    OF    TITLE   TO   LAND.  16 

the  answer  is,  Ita  lex  scripta  est;  and  besides,  the  trouble  and 
expense  of  doing  so  are  a  protection  against  collusion  which 
the  Legislature  may  well  have  intended  to  preserve,  while  a 
serious  question  might  be  raised  as  the  acquisition  of  juris- 
diction where  there  is  such  collusion.  But  it  is  said  acknowl- 
edgment on  the  back  of  the  summons  or  petition  is  equivalent  to 
service.  Service  of  what?  In  this  case  of  a  summons  issued  to 
a  foreign  county,  because  it  was  upon  such  a  summons  that  the 
defendant  wrote  his  acknowledgment.  But  ])y  the  express  terms 
of  the  law,  the  same  result  would  have  followed  had  the  petition 
been  mailed  to  him  and  his  acknowledgment  made  upon  it, 
so  that  the  trouble  and  expense  of  a  summons  were  wasted. 
The  service  to  which  such  acknowledgment  was  intended  to 
be  made  equivalent  is  the  service  which  miglit  actually  and 
lawfully  liave  been  made,  equivalent  in  this  case  to  service  of 
summons  in  still  another  county.  It  is  a  statute  of  evidence; 
in  other  words,  submitting  other  proof  of  notice  of  pendency 
of  the  action  for  the  summons  and  officer's  return.  Or  it 
may  be  said,  that,  as  a  party  must  be  summoned,  which  can 
only  mean  served  with  summons,  in  the  county,  the  acknowl- 
edgment is  not  equivalent  to  service  in  the  county,  unless 
made  there.  So  voluntary  appearance,  to  be  equivalent  to 
service  in  the  county  must  be  appearance  there,  i.  e.,  actual, 
as  opposed  to  constructive  appearance.  But  however  this 
may  be,  in  my  opinion,  the  statute,®  was  not  intended  to,  in 
any  way,  qualify  or  enlarge  the  provisions  of  the  statute.^" 
It  is  not  permitted  that  one  may  do  indirectly  what  he 
may  not  do  directly.  Hence,  a  plaintiff  is  not  permitted  to 
sue  two  defendants  on  a  contract  in  this  county  and  serve 
one  of  them  with  summons  in  this  county,  and  the  other  with 
summons  in  another  county  of  the  State,  if  the  action  is  not 
on  a  joint  contract.  If  during  the  trial  it  develops  that  the 
defendant  in  this  county  is  not  jointly  liable  on  the  contract, 

9  Ohio  Gen.  Code,  Sec.  11287.  in  Lament  v.  Holmes,  10  W.  L.  B. 

10  Ohio    Gen.    Code,    Sees.    11,277        (Ohio),  414. 
and  11,288;   opinion  by  Harmon,  J., 


17  TRANSFER    OF    REAL    ESTATE.— VENUE    OF    ACTION.  §  18 

the  action  as  to  him  should  be  dismissed,  and  the  summons 
for  the  other  defendant  quashed.^' 

The  defendant,  or  defendants,  residents  of  the  county  in 
which   the   suit  is  brought,   and   from   which   summons  must 
be   issued   to   another   county,   or   counties  in   the   State,   for 
another  defendant,  or  defendants,  must  be  the  real  defendant, 
or  must  have  a  substantial  interest  in  the  controversy  adverse 
to  the  plaintiff.     It  is  not  enough  that  the  defendant  have  a 
colorable  interest  in  the  suit.     The  question  of  the  jurisdic- 
tion of  the  court  over  a  nonresident  defendant  must  not  be 
brought    about    under    color    or    fictitious    arrangement.      To 
allow  the  resident  defendant  when  the  action  is  brought,  to 
be  the  nominal  defendant,  without  a  real  or  substantial  in- 
terest adverse  to  the  plaintiff  against  whom  relief  is  sought, 
would  open  a  wide  door  to  fraud  by  means  of  oppression  and 
wrong.^- 

In  an  action  to  enjoin  the  collection  of  a  judgment,  the 
sheriff  holding  the  execution  is  not  a  necessary  party,  and 
the  summons  in  such  action  can  issue  for  a  defendant  m 
another  county.*' 

The  residence  of  one  who  is  serving  a  sentence  of  impris- 
onment is,  for  the  purpose  of  serving  summons,  in  the  county 
where  the  prison  is  located,  and  service  upon  him  in  a  suit 
brought  in  that  county  renders  service  valid  upon  his  co- 
defendants  in  the  county  where  they  reside." 

i.Dunn   V.   Hazlitt,   4   O.   S.  435.  Brennen    ^- Js^)'''    ^3    Kai.    123 

..  Mien   V.   Miller,   11    0.   S.  374;  Maholm  v.  Marshall,  29  O    S.  61 

1  Ba'tos'  Pleading.  Prac.  Parties  and  Sparks  v.  Bayer    5  ^a-  ApP-  721 

Forms.    Sec.    500;    Stall    v.    Powell,  Harnson   v.   Carbon,    14   \\yo.  246 

30  Neb    150    97  N.  W.  249;  McKib-  McC^rmick    v.    Cummins,    59    ^eb. 

ben\'   Dav   98  X.  W.  845;  Christian  330;  Head  v.  Daniels,  38  Kan.  1. 
V     Williams,    35     Mo.    App.     297;  1 3  Howard   v.    Levering,    8    C.    C. 

Perry    v.    Sharp,    8    Fed.    Rep.    15;  (Ohio),  614. 

Adair    V     Forev,    105    N.    W.    714;  i*  Thompson  v.  Montross,  2  N.  P., 

Mimmick  V.  Matchett,  10  Kan.  App.  N.S.,  368;    Davis  v.  Duffie,  8  Bosw. 

170;  Rulean  v.  Hulze,  32  Kan.  295;  (N.  Y.)    617. 


§§19,20  merwine's  trial  of  title  to  land.  18 

Sec.  19.     Venue — What  must  appear  in  the  pleading-  as  to. 

It  is  not  necessary  under  the  code,  as  at  common  law,  to 
lay  the  venue,  that  is,  it  is  not  one  of  the  facts  to  be  specifi- 
cally alleged.  But  the  fact  must  appear  in  some  way  in  the 
petition  that  the  subject-matter  is  properly  within  the  juris- 
diction or  venue  of  the  court,  Init  not  necessarily,  by  a 
definite  and  separate  allegation.  If  it  concerns  land,  or  it 
is  an  action  that  must  be  brought  where  the  cause  arose,  or 
in  some  particular  venue,  it  must  be  shown  by  the  allega- 
tions of  the  petition  that  the  subject-matter  of  the  action 
is,  or  arose  in  the  county  where  the  action  is  instituted. 
This  will  appear  from  the  facts  stated  without  special 
allegation.^^ 


Sec.  20.  Venue — Real  property  in  one  or  more  tracts  in  two 
or  more  counties — Action  may  be  brought  in 
either — Specific  performance. 

If  real  property,  the  subject  of  an  action,  be  an  entire  tract, 
and  situated  in  two  or  more  counties,  or  if  it  consists  of 
separate  tracts  situated  in  two  or  more  counties,  the  action 
may  be  brought  in  any  county  in  which  any  tract,  or  part 
thereof,  is  situated,  unless  it  be  an  action  to  recover  posses- 
sion thereof,  and  if  the  property  be  an  entire  tract  and 
situated  in  two  or  more  counties,  an  action  to  recover  pos- 
session thereof  may  be  brought  in  either  of  such  counties; 
but  if  it  consists  of  separate  tracts  in  different  counties,  the 
possession  of  such  tracts  must  be  recovered  by  separate 
actions  brought  in  the  counties  where  they  are  situated. 
Causes  of  action  to  compel  specific  performance  of  a  contract 
to  sell  real  estate  may  be  brought  in  the  county  where  the 
land  lies  or  where  the  defendants,  or  any  of  them,  reside.^' 


isKinkead's  Code  Pleading,  Sec.  tieal;  Nebraska,  1,051  (1907),  iden- 
3^<^-  tical;    see,   also,   Close   v.   Wheaton, 

16  Snyder,  5,581;  Act  of  April  28,  65  Kan.  830,  70  Pac.  891,  70  Pac. 
1908;    Kansas,   4,477    (1901),   iden-       1,131;    Cobby  v.   Wright,   45  X.  W. 

(Neb.)  4-66. 


19  TRANSFER    OF    REAL    ESTATE. — VENUE    OF    ACTION .§§  21,  22 

A  court  of  equity  in  one  State,  having  acquired  jurisdic- 
tion over  the  persons  of  parties  may  enforce  specific  perform- 
ance of  contracts  in  relation  to  lands  in  another  State/^ 

Sec.    21.     Venue— Actions   against   officers   must   be   brought 
where  cause  of  action  arose,  except. 

Actions  for  the  following  causes  must  be  brought  in  the 
county  where  the  cause,  or  some  part  thereof,  arose : 

(a)  An  action  for  the  recovery  of  a  fine,  forfeiture  or 
penalty  imposed  by  statute,  except  when  imposed  for  an 
offense  committed  on  a  river  or  other  stream  of  water,  road, 
or  other  place  which  is  the  boundary  of  two  or  more  counties, 
the  cause  of  action  will  be  deemed  to  have  arisen  in  each  of 
said  counties,  and  may  be  brought  in  any  county  bordering 
on  such  river,  watercourse,  road,  or  other  place,  and  opposite 
to  the  place  where  the  offense  was  committed. 

(6)  An  action  against  a  public  officer  for  an  act  done  by 
him  by  virtue  of,  or  under  color  of,  his  office,  or  for  neglect 
of  his  official  duties. 

(c)    An    action   on   the   official   bond   or  undertaking   of  a 

public  officer.^* 

Sec.  22.  Venue— The  action  against  a  domestic  corporation 
other  than  an  insurance  company. 
An  action,  other  than  one  of  those  mentioned  in  the  be- 
ginning paragraphs  of  this  chapter  (Snyder,  5580,  5581,  5582; 
Wilson,  4246,  4247,  4248),  against  a  corporation  created  by  the 
laws  of  this  State  may  be  brought  in  the  county  in  which  it  is 

17  Burnlev  V.  Stephenson,  24  O.  S.  21    Pac.    1,058;    Fay    v.    Edmiston, 

474;    Penn'v.    Hayward,    14    0.    S.  28   Kan.    106;    Clay  v.   Hoysradt,   8 

309 '                            '  Kan.    74;     Kyle    v.     Exchange,    76 

TsSnvder,  5,582;  Act  of  April  28,  X.    W.     (Neb.)     1,058;     Hubert    v. 

1908;    Kansas,   4,478    (1901),   iden-  Wortendyke,    68    X.    W.    350;    City 

tical;  Nebraska,  1,053   (1907),  iden-  v.     Hill,    57    N.    W.     (Neb.)     548; 

tical-    Ohio   Gen.   Code,   Sec.    11,271  Venim  v.  Houston,  56  N.  W.   (Neb.) 

(1910),    identical;    Board    v.    Com-  970;    McKee    v.    Sewall,    16    N.    W. 

missioners,    44    Kan.    231,    24    Pac.  (Neb.)   827. 
484;  Smith  v.  Collins,  42  Kan.  1,059, 


§23 


merwine's  trial  of  titi^  to  land. 


20 


situated,  or  has  its  principal  office  or  place  of  business,  or  in 
which  any  of  the  principal  officers  may  reside  or  may  ])e  sum- 
moned; but  if  such  corporation  be  an  insurance  company,  the 
action  may  be  brought  in  the  county  wherein  the  cause  of 
action,  or  some  part  thereof,  arose.^'-* 

Sec.  23.     Venue — Actions  against  transportation  or  transmis- 
sion companies — Turnpike  road  companies. 

Actions  may  be  commenced  against  any  transportation  or 
transmission  corporation  or  company,  in  the  county  where 
any  persons  reside  upon  whom  service  of  summons  is  author- 
ized to  be  made,  irrespective  of  the  order  in  which  such 
persons  are  named  in  this  act,  and  irrespective  of  the  resi- 


19  Snyder,  5,583;  Act  of  April  28, 
1908;  Ohio  Gen.  Code,  Sec.  11272 
(1910),  identical.  This  statute 
authorizes  an  action  upon  a  policy 
of  life  insurance  issued  by  a  com- 
pany organized  under  the  laws  of 
this  State  to  be  brought  in  the 
county  where  the  death  of  the  party 
occurred.  Union  Central  v.  Pryer, 
36  O.  S.  534.  Under  the  provisions 
of  this  statute  an  action  can  be 
maintained  by  the  directors  of  a 
county  infirmary  against  a  city  of 
the  second  class  in  another  county, 
where  the  boundaries  of  such  city 
are  identical  with  those  of  a  town- 
ship, and  such  township  has  thereby 
become  merged  in  the  city,  for  ex- 
penses incurred  in  furnishing  tem- 
porary relief  to,  and  removing 
insane  paupers,  having  a  local  set- 
tlement in  such  city;  and  such 
action  may  be  brought  either  in 
the  county  where  the  plaintiffs  are 
infirmary  directors  and  where  the 
relief  is  furnished,  or  in  the  county 
where  the  city  defendant  is  situ- 
ated. Directors  v.  City,  15  0.  S. 
409.     A  corporation  must  be   sued 


in  the  county  in  which  the  corpora- 
tion is  situated,  or  has,  or  had  its 
principal  place  of  business,  or  in 
which  an  office  or  agent  is  main- 
tained. The  word  "may"  in  the 
General  Code,  Sec.  11,272,  should  be 
read  "must."  Kinsey  v.  Burgess, 
4  X.  P.  273;  Stanton  v.  Enquire, 
7  X.  P.  589;  Railroad  v.  Morey, 
47  0.  S.  210.  A  city  partly  situ- 
ated in  two  counties  has  its  situs 
in  the  county  where  its  municipal 
offices  and  government  are  located, 
and  must,  when  the  action  is  not 
local,  be  sued  in  that  county.  City 
V.  Fox,  60  0.  S.  340.  When  a  cor- 
poration is  properly  sued  with 
another  defendant  of  the  county, 
where  the  other  defendant  resides, 
or  has  his  place  of  business,  a 
summons  may  be  served  upon  the 
corporation  in  the  county  where  its 
principal  place  of  business  is  located. 
General  Code,  Sec.  11,272,  as  amended 
by  93  Ohio  Law,  125,  should  be  con- 
strued in  connection  Avith  Gen.  Code, 
Sec.  11,282;  Baldwin  v.  Wilson,  7 
N.   P.  506. 


21  TRANSFER    OF    REAL.    ESTATE. VENUE    OF    ACTION  .§  §  24,  25 

dence  of  any  superior  officer  or  authorized  person  upon 
whom  service  of  summons  may  be  had;  or,  in  the  county 
where  the  cause  of  action,  or  some  part  thereof,  may  have 
accrued;  or,  in  case  of  a  transportation  or  transmission  com- 
pany, in  any  county  through  which  or  into  which,  the  lines 
of  road  or  any  part  of  the  structure,  or  any  transportation 
or  transmission  company  may  be,  or  passes;  and  the  plaintiff 
may  elect  in  which  county  he  will  bring  any  action. 

An  action  other  than  one  of  those  mentioned  in  the  first 
three  sections  of  this  chapter  (Snyder,  5580,  5581,  5582, 
Wilson,  4246,  4247,  4248),  against  a  turnpike  road  company 
may  be  brought  in  any  county  in  which  any  part  of  such  road, 
or  roads  lie.-° 

Sec.  24.     Venue — Where  domestic  charter  provides  place  for 

suit. 
The  provisions  of  that  chapter  do  not  apply  in  case  of  any 
corporation  created  by  the  laws  of  this  State,  whose  charter 
prescribes  the  place  where  alone  a  suit  against  such  corpora- 
tion may  be  brought.-^ 

Sec.  25.  Venue— The  action  against  a  nonresident  or  foreign 
corporation. 
In  addition  to  the  other  counties  in  which  an  action  may 
be  brought  against  a  nonresident  of  this  State,  or  foreign 
corporation,  such  action  may  be  brought  in  any  county  in 
which  there  may  be  property  of,  or  debts  owing  to  such 
defendant,  or  where  such  defendant  may  be  found;  if  such 
defendant  be  a  foreign  insurance  company,  the  action  may 
be  brought  in  any  county  where  such  cause  of  action,  or  any 

2oSnvder,    5..584    and    5.5S.5;    Act  21  Snyder,    5,5^6 -,    Wil.nn.    4,252; 

of   April   28,    1908.     The   last   para-  Ohio  Gen.  Code,  Sec.  11.27.5   (1910), 

graph  of  the  above  section  applicable  identical;     Portage     v.     Stukey,     18 

to     turnpike     road     companies,     is  Ohio,   4.55;    Portage    v.    Western,    6 

exactly    identical    with    Ohio     Gen.  0.    S.    599;    Knox    v.    Bowersox,    6 

Code,   Sec.    11,274    (1910).  C.  C.    (Ohio),  275. 


§  25  MERWINE*S   TRIAL   OP   TITLE   TO   LAND.  22 

part  thereof,  arose,  or  where  the  plaintiff  resides,  or  where 
such  company  has  an  agent."- 

The   Supreme   Court   of   Ohio,    under   an   identical   statute, 
in  considering  this  provision,  said : 

"Power  to  hear  and  determine  a  controversy  is  jurisdiction, 
and  it  is  complete  when  both  the  sul)ject-matter  of  the  con- 
troversy and  the  parties  to  it  are  properly  before  the  court. 
In  determining  whether  a  given  subject-matter  is  within  the 
jurisdiction  of  a  court,  regard  to  the  parties  is  not  involved. 
The  subject-matter  of  the  original  action  was  a  contract 
alleged  to  have  been  broken  by  defendant.  There  is  no 
question  but  that  the  court  of  common  pleas  had  jurisdiction 
of  this  subject-matter,  without  regard  to  the  place  where  the 
contract  was  made,  or  where  it  was  violated.  The  point 
made  by  the  defendant  is,  that  the  court,  upon  the  facts 
stated  in  the  petition  had  no  power  to  issue  its  process  against 
the  defendant,  or,  even  after  voluntary  appearance,  to  pro- 
ceed to  render  judgment  against  it,  on  the  cause  of  action 
stated  in  the  petition.  The  general  jurisdiction  of  the  court 
of  common  pleas,  over  the  persons  of  litigants,  is  not  con- 
fined to  residents  or  natural  persons;  nonresidents  of  the 
State  and  foreign  corporations  are  as  much  subject  to  its 
jurisdiction  as  are  residents  and  domestic  corporations.  Ex- 
cept in  cases  of  a  local  nature,  our  courts  are  open  to  all 
who  may  seek  relief  therein,  against  anyone  who  can  be 
reached  by  its  process.  We  know  of  no  principle  that  will 
exempt  a  foreign  corporation  that  voluntarily  comes  into  this 
State,  from  liability  to  answer  any  complaint  which  may  be 
preferred  against  it  in  the  courts  of  the  State  that  would 
not  exonerate  natural  persons  under  like  circumstances 
#     *    *    " 

The  general  principle  declared  in  this  provision  of  the 
statute  has  no  reference  to  actions  upon  causes  arising  in 
this  State,  no  matter  where  the  cause  arose,  if  the  subject- 

22  Snyder.  5.587;  Act  of  April  28,  tical;  Ohio  Gnn.  Code,  Sec.  11,276 
1908;    Kansas,    4,483    (1901),   iden-        (1910) ,  identical. 


23  TRANSFER    OF    REAL    ESTATE. — VENUE    OF    ACTION.  §  25 

matter  be  within  the  jurisdiction  of  the  court.  Nor  is  the 
rule  confined  to  corporations  other  than  insurance  companies. 
Any  foreign  corporation  which  may  be  found  in  this  State, 
may  be  sued  in  any  county  in  this  State,  in  any  court,  having 
jurisdiction  of  the  subject-matter  of  the  suit.^^ 

An  action  brought  to  enforce  a  statutory  liability  of  the 
stockholders  in  a  corporation  is  not  "rightly  brought"  in 
this  county  under  favor  of  the  statutes,-*  when  none  of  the 
defendants  reside,  or  could  be,  or  were  summoned  here,^^ 

The  provisions  of  the  statute  under  consideration  -"  provide 
that  an  action  may  be  brought  against  a  nonresident  of  the 
State  in  any  county  in  which  he  may  have  property  or  debts 
owing  to  him,  or  where  he  may  be  found.  If  such  nonresident 
cannot  be  found  and  served  personally,  the  court  cannot 
obtain  jurisdiction  unless  the  action  be  one  in  which  con- 
structive service  may  be  had  on  the  defendant.  Where  in 
such  action  the  scope  and  purpose  of  it  is  the  recovery  of  a 
money  judgment,  and  enforce  its  collection  by  writ  of  execu- 
tion under  the  statute,-^  the  statute  does  not  authorize  a 
personal  service  out  of  the  State  on  such  nonresident.-^ 

An  action  begun  by  a  receiver  appointed  by  the  court,  to 
wind  up  the  affairs  of  a  corporation,  and  to  collect  an  unpaid 
subscription,  is  a  suit  at  law,  and  not  properly  brought  for 
the  resident  receiver  to  join  in  one  action  all  the  delinquent 
stockholders  as  defendants,  residents  as  well  as  nonresidents 
of  the  county.  The  service  of  summons  on  nonresidents  of 
the  county  in  such  action  will  be  set  aside.-® 


23  Handy    v.    Ins.    Co.,    37    0.    S.  above,    is    the   same   as   the   district 

370.      At  the  time   this   action   was  court  of   the   State   of   Oklahoma, 

begun    the    statute    -contained    this  24  Ohio    Gen.    Code,    Sees.     11,276 

additional  provision:     "But   if  such  and  11,282. 

defendant    be    -a    foreign    insurance  25  Lamont    v.     Plolmes,     etc.,     10 

company,  the  action  may  Jbe  brought  W.  L.  B.  413. 

in   any   county  where   the   cause   or  26  Ohio  Gen.  Code,  Sec.   11276. 

some     part     thereof,     arose."       The  27  Ohio  Gen.   Code,  Sec.   11,282. 

common    pleas    court    mentioned    in  28  Williams    v.    Wilson,    28    0.    S. 

the   opinion  of  the  court,   set  forth  451. 

29  Smith  V.  Johnson,  57  0.  S.  486, 


§26 


MERWINE  S   TRIAL   OP   TITLE   TO    LAND. 


24 


Sec.  26.     veuue — Where  every  other  action  must  be  brought. 

Every  other  action  must  be  brought  in  the  county  in  which 
the  defendant,  or  some  one  of  the  defendants  reside  or  may 
be  summoned.^" 

Where  an  action  is  brought  and  summons  is  issued  to  the 
sheriff  of  another  county,  and  is  there  served  upon  llie 
defentlant,  and  judgment  in  such  case  is  rendered  upon 
default  without  any  appearance  of  the  defendant,  the  judg- 
ment is  void,  the  court  having  no  jurisdiction  of  the  person 
of  the  defendant.^^ 

As  has  been  shown  elsewhere  in  this  work,  an  action 
cannot  be  brought  outside  of  the  county  where  the  defendant 
resides,  or  may  be  summoned,  by  merely  uniting  with  him 
as  codefendant,  some  imaginary  party,  against  whom  no 
judgment  could  be  properly  rendered." 


3"  Snyder,  5,589 ;  Act  of  April  2S, 
1908;  Kansas,  4,485  (1901),  iden- 
tical; Nebraska,  1,059  (1907),  iden- 
tical; Ohio  Gen.  Code,  Sec.  11277 
(1910),  identical,  but  has  attached 
this  exception:  "Except  actions 
against  an  executor,  administrator, 
guardian,  or  trustee,  which  may  be 
brought  in  the  county  wherein  he 
was  appointed  or  resides,  in  which 
cases  summons  may  issue  to  any 
county."  Since  the  plaintiff  sought 
the  jurisdiction  of  the  court  below, 
and  since  the  counterclaim  of  the 
defendant  arose  out  of  the  trans- 
action set  forth  in  the  petition,  and 
is  connected  with  the  subject-matter 
of  the  action,  the  counterclaim  is 
properly  filed  in  the  cause,  and 
jurisdiction  is  obtained  by  the  court 
as  against  the  defendant;  and,  in 
such  a  case,  t|je  provisions  of  the 
code  of  civil  procedure  which  de- 
clares that  "every  other  action 
must  be  brought  in  the  county  in 
which  the  defendant,  or  some  one  of 
the    defendants    reside    or    may    be 


summoned,"  is  waived  by  the  plain- 
tiff and  does  not  apply  here.  Wyman 
V.  Herrard,  9  Okla.  35,  59  Pac. 
1.009. 

31  Foster  v.  Cimarron,  14  Okla. 
24,  76  Pac.  145;  Walker  v. 
Stevens,  72  N.  W.  (Xeb.)  1,038. 
Where  one  of  two  joint  makers  re- 
siding in  the  county  is  sued  in  the 
county  where  one  resides,  and  not 
in  the  other,  and  orders  of  attach- 
ment issue  to  the  other  county, 
they  will  be  dissolved  when  no  at- 
tachment is  made  in  the  county 
where  suit  is  brought,  in  so  far  as 
it  applies  to  the  maker  residing  in 
the  other  county.  Ruleman  v. 
Hulze,  32  Kan.  598,  5  Pac.  176. 
A  civil  action  for  an  assault  and 
battery  may  generally  be  commenced 
in  any  county  in  which  the  defend- 
ant may  be  summoned.  McAnar- 
ney  v.  Caughenaur,  34  Kan.  621, 
9   Pac.   476. 

33  Brenner  v.  Eggly,  23  Kan.  123. 


25  TRANSFER    OF    REAL    ESTATE. — VENUE    OF    ACTION.  §  27 

Under  the  Ohio  statute,  an  action  to  recover  damages 
under  the  act  requiring  compensation  for  causing  death  by- 
wrongful  act,  neglect  or  default,  may  be  brought  in  any 
coimty  in  the  State,  where  the  defendant,  or  one  of  the 
defendants  reside  or  may  be  served;  and,  in  such  case,  where 
there  are  several  defendants,  against  all  of  whom  the  cause 
of  action  is  alleged,  and  some  of  whom  are  served  in  the 
county,  and  some  in  another  county  than  that  where  the  suit 
is  brought,  the  validity  of  the  service  of  summons  in  such 
other  county,  and  the  jurisdiction  of  the  court  over  the  per- 
sons of  the  nonresident  defendants  depend  upon  the  truth 
of  the  allegations  of  the  petition.^* 

Sec.  27.     Venue — The  action  for  divorce. 

An  action  for  divorce  may  be  brought  in  the  county  of 
which  the  plaintiff  is  an  actual  resident  at  the  time  of  the 
filing  of  the  petition.*^ 

"  Drea    v.    Carrington,    32    0.    S.  tical.      This    means    an    actual    and 

505.  permanent  residence  and  not  a  tem- 

35  Snyder.  5.5S0;  Act  of  April  28,  porary  residence.     Carpenter  v.  Car- 

1908;    Kansas,   4,484    (1901),   iden-  penter,  30  Kan.  712,  2  Pac.  122. 


CHAPTER   III. 

THE  PROCEDURE  BY  WHICH  A  COURT  ACQUIRES 
POWER  TO  TRANSFER  REAL  ESTATE  FROM  ONE 
PERSON  TO  ANOTHER— THE  COMMENCEMENT  OF 
THE  ACTION. 


SECTION 

28.  Preliminary  statement. 

29.  The  action — How  commenced. 

30.  Copy   of    the    petition   need   not 

accompany  tlie  summons — How 
copy    obtained. 

31.  The  praecipe — -Tlie  summons  and 

its  requisite. 

32.  Summons   not   fatally   defective, 

when — Summons  in  foreclosure 
— Judgment  for  more  than 
amount  indorsed  on  summons. 

33.  Summons  may  issue  to  another 

county,  when. 

34.  Summons — Service  and  return. 

35.  The    summons — The    return    of 

the  sheriff  may  be  corrected 
by  amendment. 

36.  How  objection  made  to  irregular 

service — May  plead  to  merits 
without  entering  appearance, 
Tiow. 

37.  Evidence    may   be   given    in   aid 

of    sheriff's    return,    when. 

38.  Alias  summons  may  issue,  when. 

39.  By     whom     summons     may     be 

served. 

40.  Summons — Service   by   responsi- 

ble citizen — Verification  of  re- 
turn. 

41.  Summons  —  Service  personal  — 

Place  of  residence. 

42.  Return  must  state  what? 

43.  Does   the    return   of   the   sheriff 

import    absolute    verity? 

44.  The  officer's  return  may  be  cor- 

rected by  amendment. 


SECnON 

46.  When  acknowledgment  of  service 
equivalent  to  service  of  sum- 
mons. 

46.  Summons — Service    on    corpora- 

tions. 

47.  Constitutional    provision    as    to 

service  of  summons  upon  for- 
eign corporation. 

48.  Foreign  corporation  required  to 

file  copy  of  charter — Must  ap- 
point resident  agent  upon 
whom  summons  may  be  served. 

49.  When   no   resident   agent   desig- 

nated service  of  summons  upon 
foreign  corporation  may  be 
upon  secretary  of  state. 

50.  Summons  on  railroad  and  stage 

company — Designated  agent. 

51.  Summons — iCertificate      of      ap- 

pointment of  designated  agent. 

52.  Failure  to  designate  agent,  local 

agent  may  be  served,  when. 

53.  SerA'ice  by  leaving  copy  at  resi- 

dence of  agent. 

54.  Service   on    insurance   company. 

55.  Service  on  managing  agent. 

56.  Constructive  service  on  nonresi- 

dent by  publication. 

57.  Tlie  affidavit  required  for  service 

by  publication. 

58.  Application    to    set    aside    con- 

structive service  and  proceed- 
ings under  it  not  a  collateral 
attack,    when. 

59.  The  affidavit  for  service  by  pub- 

lication may  be  corrected  by 
amendment,  when. 

26 


27  COMMENCEMENT    OF    THE    ACTION    TO    TRANSFER.  §  28 

SECTION  SECTION 

60.  Service    by    publication  —  When       G5.  Service    by    publication    on    un- 

and  how  made.  known  heirs. 

61.  Service  by  publication  complete,       06.  Procedure    where    part    only    of 

when — Proof  of  publication.  the   defendants  are   served. 

62.  The   affidavit   in    proof   of    pub-       07.  Procedure    against    several    de- 

lication     of     notice     may     be  fendants    on    promissory   note, 

amended.  08.  Procedure  where  one  of  a  part- 

63.  When   personal   service  of   sum-  ncrship  has  been  served. 

mons  may  be  made  out  of  the       69.  Judgment   in  the  action  no  bar 
State.  against   defendant   not  served. 

64.  Judgment  on  service  by  publica-       70.  Lis  pendens — No  notice,  if  serv- 

tion   nuiy   be   opened   up,   how  ice  be  not  had. 

— Procedure  as  to — Good  faith      71.  Judgment  a  lien  on  land  in  other 

purchasers.  county,  when. 

Sec.  28.     Preliminary  statement. 

Tlie  question  that  should  he  uppermost  in  the  mind  of 
counsel  ami  the  court  in  conducting  any  proceeding  in  which, 
real  estate  is  to  be  sold,  is  to  give  title  to  the  real  estate  to 
some  one  to  whom  the  court  shall  eventually  transfer  it  by 
judicial  order.  Counsel  as  well  as  the  court  should  ever  keep 
in  mind  that  what  each  docs  in  the  action  is  a  matter  of 
public  record,  and  will  appear  in  the  abstract  of  title  to  the 
real  estate  in  question  and  will  be  examined  carefully  by 
skillful  examiners  of  real  estate  title  each  time  the  property 
is  sold  ever  afterward. 

The  prime  and  first  essential  is  that  everyone  who  has 
an  interest  in  the  action  must  be  made  a  party  to  the  pro- 
ceeding, and  brought  into  the  action  by  some  one  of  the 
methods  required  by  law.  The  usual  method  is  by  summons 
served  upon  the  party  by  the  sheriff  or  other  officer,  or  by 
some  person  appointed  by  the  statute.  It  may  be  a  written 
waiver  and  entry  of  appearance  filed  in  the  action  by  the 
party  himself,  or  it  may  be  by  the  party  himself  by  filing 
some  pleading  or  motion  or  application  in  the  suit,  or  by 
some  verbal  directions  to  the  court,  though  not  intending 
to  submit  himself  to  the  jurisdiction  of  the  court,  or  it  may 
be  by  notice  served  upon  the  opposite  party  of  proceedings 
under  a  special  statute. 

Fnless  the  notice  so  required  by  law  is  given  to  the  party, 
his  rights  are  not  affected  by  any  order  of  any  court  attempt- 


§  29  merwine's  trial  of  titi^  to  land.  28 

ing  to  divest  him  of  his  title  thereto.  The  lawyer  who 
conducts  proceedings  by  which  real  estate  is  sold  by  judicial 
process,  and  the  examiner  of  title  to  real  estate  so  sold, 
should  give  the  utmost  attention  to  this  all-important  ques- 
tion :  Did  the  court  by  proper  notice  to  all  necessary  and 
proper  parties  acquire  the  power  to  order  a  sale  or  transfer 
of  the  real  estate? 

Sec.  29.    The  action — How  commenced. 

A  civil  action  may  be  commenced  in  a  court  of  record  by 
filing  in  the  office  of  the  clerk  of  the  proper  court,  a  petition, 
and  causing  a  summons  to  be  issued  thereon.^ 

This  requirement  of  the  statute  is  essential  to  give  the 
court  power  or  authority  to  give  legal  sanction  to  future 
orders  in  the  case.^ 

It  has  been  held  that  the  issuance  of  a  summons  upon  a 
praecipe  by  a  codefendant  is  not  an  error  of  which  defendant 
can  complain,  nor  will  the  jurisdiction  of  the  court,  after  due 
service  of  the  summons  issued  thereon,  be  affected  by  reason 
thereof.^ 

1  Snyder,    5,591;     Wilson,    4,257;  date  when  the  complaint  wag  veri- 

Ohio  Gen.  Code,  Sec.  11279    (1910),  fied.       Greenameyer     v.     Coate,     12 

identical;     Kansas,     4,487      (1901),  Okla.  452,  72  Pac.  377. 
identical;    Nebraska,    1,063    (1007),  3  State  Life  Ins.  Co.  v.  Oklahoma 

identical.     The  issuing  of  summons  Xat.    Bank,    etc.,    21    Okla.    823,    97 

by   the   clerk    of    the    district   court  Pac.    574.      Attachment    suit,    when 

without  a  praecipe  is  not  an  error  deemed    commenced.       Raymond    v. 

of    which    the    defendant    can    com-  Nix,    5    Okla.    656,   49    Pac.    1,110; 

plain.     Goflf  v.  Russell,  3  Kan.  212.  Weston   v.    Long,    63   Kan.    876,   66 

2Reddick  v.   Webb.    6   Okla.   392,  Pac.    1.032;    Baumeister  v.    Carroll, 

50    Pac.    363;     Schnell    v.    Jay,    4  43    Kan.    64,    22    Pac.    1,012.      Re- 

Okla.    157,    46    Pac.    598.      Actions  plevin    suit,    see    Kelly   v.    Todd,    5 

for   forcible   entry   and   detainer,   or  Okla.  360,  49  Pac.  353.    Injunction, 

forcible  detainer,  are  commenced  by  see  Barnett  v.  Schodd,  73  Kan.  414, 

the  filing  of  a  complaint  and  cans-  91  Pac.  539.     Actions  on  benefit  in- 

ing  summons  to  be  issued  thereon;  surance,  see  Woodmen,  etc.,  v.  Bau- 

and  such  actions  are  not  deemed  to  ersfield,  62  Kan.  867,  62  Pac.  1,012; 

be    commenced     until     summons    is  German  v.  Wright,  C  Kan.  App.  611, 

issued,    and   this    regardless    of   the  49  Pac.  704. 


29  COMMENCEMENT    OF    THE    ACTION   TO   TRANSFER.    §§  30,  31 

The  filing  of  an  amended  petition  in  an  action  which  does 
not  substantially  change  the  cause  of  action,  does  not  re- 
quire the  issuing  and  service  of  a  new  summons.* 

Sec.  30.  Copy  of  the  petition  need  not  accompany  the  sum- 
mons— Plow  copy  obtained. 
A  copy  of  the  petition  need  not  accompany  the  summons, 
but  the  defendant  or  plaintiff  will  be  entitled  to  a  copy  of 
the  petition,  or  any  other  paper  filed  in  the  action,  on  appli- 
cation to  the  clerk  therefor;  and  the  cost  of  such  copy  will 
be  taxed  among  the  costs  in  the  action.^ 

Sec.  31.     The  praecipe — The  summons  and  its  requisite. 

The  summons  will  be  issued  by  the  clerk,  upon  a  written 
praecipe  filed  by  the  plaintiff;  and  the  same  will  be  under  the 
seal  of  the  court  from  which  the  summons  issued,  and  must 
be  signed  by  the  clerk,  and  must  be  dated  the  day  that  it  is 
issued.  It  must  be  directed  to  the  sheriff  of  the  county, 
and  command  him  to  notify  the  defendant,  or  defendants, 
named  therein,  that  he  or  they  have  been  sued,  and  must 
answer  the  petition  filed  by  the  plaintiff,  giving  his  name, 
at  the  time  stated  therein,  or  the  petition  will  be  taken  as 

*  Packing  v.   Orrick,   4   Okla.   661,  to  pormit   0  to  amend  the  petition 

46    Pac.   573;    Schuyler    v.    Bollong,  to   allege  a  cause  of  action   on  the 

45    N.    W.     (.Neb.)     164.      Where    a  indemnity   bond    in   his    own   name, 

suit  was  brought  by  0  for  the  bene-  And  where  such   amendment  to  the 

fit    of    certain    parties,    who    were  petition    as    above     stated    is    per- 

heirs  of   F,  the  suit  being  upon  an  mitted,   it  is  not  necessary   for  the 

indemnity  bond  made  to  0,  the  con-  plaintiff    to    file    a    new    cost    bond 

stable,    to    indemnify    him    against  and    procure    a    new    summons,    the 

"judgments,"    etc.,    that    might    be  cost    bond    having    been    filed,    and 

Tendered  against  him  on  account  of  summons    issued    and    served,    and 

certain  attachment  procured  by  the  appearance    made    in    the    original 

principal   obligor  on    the  bond,   and  case.      Armour,    etc.,    v.    Orrick,    4 

where     F     had    procured    judgment  Okla.   661,  46  Pac.   573. 

against  0  on  account  of  the  liability  n  Snyder,    5,592;     Wilson,    4,258; 

for  which   the  indemnity   bond   was  Kansas,  4,147    (1889),  identicaL 
given,   held,  that  it  was   not  error 


§  32  MERWINE  'S   TRIAL   OF    TITLE   TO   LAND.  30 

true,  and  judgment  rendered  accordingly ;  and  where  the 
action  is  on  a  contract  for  the  recovery  of  money  only,  there 
must  be  indorsed  on  the  writ  the  amount,  to  be  furnished  in 
the  praecipe,  for  which,  with  interest,  judgment  will  be 
taken,  if  the  defendant  fail  to  answer.  If  the  defendant  fail 
to  appear,  judgment  cannot  be  rendered  for  a  larger  amount 
and  the  costs." 

Sec.  32.  Summons  not  fatally  defective,  when — Summons  in 
foreclosure — Judgment  for  more  than  amount  in- 
dorsed on  summons. 

The  provisions  of  the  above  statute,  which  requires  that 
the  amount  for  which  judgment  is  asked  in  judgments  on 
contracts  for  the  recovery  of  money  only,  be  indorsed  on 
the  writ,  should,  of  course,  be  complied  with.  But  where  such 
indorsement  is  not  entered  on  the  writ,  and  the  judgment 
is  entered,  the  judgment  is  not  void.  In  all  such  actions 
objection  should  be  made  to  the  irregularity,  and  when  no 
objection  is  made,  the  irregularity  is  deemed  to  be  waived.'^ 

The  statute  under  consideration  does  not  require  the  sum- 
mons in  a  foreclosure  suit,  where  personal  service  has  been 
had,  to  advise  the  defendant  of  the  nature  of  the  action 
against  him,  and  of  the  kind  of  judgment  that  will  be  ren- 
dered. Nor  is  it  necessary,  the  action  not  being  for  the 
recovery  of  money  only,  to  indorse  on  the  writ  the  amount 

6  Snyder,    5.593;     Wilson,    4,259;  1   C.   C.   A.   53.  5  Ind.   Ter.   636,  82 

Kansas,     4,489      (1901),     identical;  S.    W.    934,    affirming    Ammonds    v. 

Ohio  Gen.  Code,  Sec.  11.281    (1910),  Brunswick.    141    Fed.    Rep.   570,    72 

identical;    Nebraska,    1.015     (1907-),  C.  C.  A.  614. 

similar.     As  to  the  nse  of  the  seal,  ^  Lawton    v.    Nicholas,     12    Okla. 

see    GoflF   v.    Russell,    3    Kan.    212;  550,  73  Pac.  263;  Bassett  v.  Mitchell, 

Dexter    v.    Cochran,    17    Kan.    447.  40  Kan.   189,  19  Pac.  671;   Same  v. 

See     the     following     cases     arising  Same,    40    Kan.    549,    20    Pac.    192 

under    former    laws    governing    this  (rehearing)  ;   Beverly  v.   Fairchilds, 

subject:      Eddy    v.     Lafayette,     163  47  Kan.  289,  27  Pac.  985-;   Simpson 

U.  S.  456.  41   L.  Ed.  225,  affirming  v.  Rice,  43  Kan.  22,  22  Pac.  1,019; 

49   Fed.   Rep.   187,   1   C   C.   A.   441;  Tootle  v.  Ellis,  63  Kan.  422,  65  Pac. 

Gulf  V.   James,    48    Fed.    Rep.    148,  675,  88  Am.  St.  246. 


31  COMMENCEMENT   OP    THE   ACTION   TO   TRANSFER.  §  33 

for  which,  with  interest,  judgment  will  be  taken  if  the  de- 
fendant fail  to  answer.* 

The  indorsements  on  the  summons  need  not  necessarily  be 
signed  by  the  clerk  with  the  seal  of  the  court  attached.^ 
It  is  a  sufficient  compliance  with  the  statute,  if  the  amount 
for  which  judgment  will  be  taken  if  the  defendant  fail  to 
answer,  appears  on  the  face  of  the  summons.^'' 

A  judgment  in  case  of  default  in  an  action  for  the  recovery 
of  money  only,  cannot  be  rendered  for  a  greater  amount  than 
that  indorsed  on  the  summons."  But  where  the  defendant 
appears  and  answers  to  the  merits  of  the  action,  the  fact  that 
the  judgment  exceeds  the  amount  indorsed  on  the  summons 
is  unimportant.^- 

In  equity  eases,  no  indorsement  is  required  on  the  sum- 
mons. It  was  so  held  in  an  action  where  the  petition  asked 
for  a  personal  judgment  and  decree  of  foreclosure;  no  answer 
was  tiled,  and  the  real  estate  was  sold  under  default  order 
of  sale,  no  personal  judgment  having  been  taken  in  the 
action. ^^  But  as  a  matter  of  proper  practice  in  equity  cases,  it 
is  better  to  indorse  on  the  summons,  not  only  the  amount 
claimed,  but  also  the  kind  of  relief  asked. 

Sec.  33.     Summons  may  issue  to  another  county,  when. 

Where  the  action  is  rightly  brought  in  any  county,  accord- 
ing to  the  provisions  of  the  chapter  herein  on  the  subject 
of  venue,  the  summons  may  then  issue  to  any  other  county, 

8  Horton  v.  Haines,  23  Okla.  878,  mons    being    regular    in    all    other 

102   Pac.    121;    Sparks   v.   Bayer,   5  respects.      Xix    v.    Gilmer,    5    Okla. 

Kan.  App.  721.  46  Pac.  980;  Beverly  740,  50  Pac.  131. 

V.   Fairchilds,   27   Pac.    (Kan.)    98.5.  lo  Thompson   v.   Pfeiffer,   60  Kan. 

9Abby   V.   Grimes,    44    Kan.    415,  409,  56  Pac.  763. 

24    Pac.    426.      A    summons    is    not  "  Elmer    v.    Chicago,    105    N.    W. 

fatally  defective  by  reason  of  being  (Xeb. )    987. 

entitled     in    the    probate    court    of  12  Essick    v.     Omaha,    62    N.    W. 

P  County,  and  directed  to  the  sheriff  ( Neb. )    67. 

of  P  County,  when  the  name  of  said  i3  Conn  v.  Rhodes,  26   0.  S.   644; 

county    had    recently   been    changed  Larimer  v.   Clemmer,  41   O.  S.  449. 
to  that  of  Noble  County,  said  sum- 


§33 


MEBWINE  S   TRIAL   OF    TITLE   TO   LAND. 


32 


against  any  one  or  more  of  the  defendants  at  the  plaintiff's 
request." 

Whether  the  defendant's  interest  in  the  action,  and  the 
result  thereof,  is  adverse  to  that  of  the  plaintiff,  is  the  test 
whether  the  action  is  rightly  brought  in  one  county  so  that 
service  may  be  had  in  another/^ 

Another  test  by  which  to  determine  whether  a  defendant 
may  be  served  in  a  county  other  than  the  one  in  which  the 
action  is  brought,  is  that  the  person  served  in  the  county 
where  the  action  is  brought  must  have  a  real  and  substantial 
interest  in  the  subject-matter  of  the  action  adverse  to  the 
plaintiff",  and  against  whom  some  substantial  relief  may  be 
obtained;  and  the  action  must  be  rightly  brought  in  the 
county  in  which  it  is  brought,  as  against  a  person  served 
with  summons  in  such  county.  "No  lawful  thing  founded 
on  a  wrongful  act  can  be  supported,"  hence,  service  of  sum- 
mons cannot  be  obtained  by  the  wrongful  act  of  the  plaintiff.^^ 


14  Snyder,  5,594;  Wilson,  4,260 
Kansas,  4,490  (1901),  identical 
Nebraska,  1,066  (1907),  identical 
Ohio  Gen.  Code,  Sec.  11,282  (1910), 
has  the  identical  words  of  this  stat- 
ute; then  there  is  added  the  words, 
"but  no  maker  or  acceptor,  or  if 
the  bill  is  not  accepted,  any  drawer 
of  an  instrument  for  the  payment 
of  money  only,  can  be  held  liable  in 
an  action  thereon,  except  on  war- 
rant of  attorney,  in  any  county 
other  than  the  one  in  which  he  or 
one  of  the  joint  makers,  acceptors 
or  drawers  reside  or  are  sum- 
moned." In  a  personal  action, 
having  but  one  defendant,  service  of 
summons  on  him  in  another  county 
is  void.  Walker  v.  Stevens,  72 
N.  W.  1,038. 

15  Barry  v.  Wochasky,   76  N.  W. 
(Neb.)   1,080. 

18  Wells  V.   Patton,   50   Kan.   732, 
33  Pac.   15;    Ruhlman  v.  Hulze,   32 


Kan.  598,  5  Pac.  176;  Brenner  v. 
Eggly,  23  Kan.  123;  Adair  v.  Forey, 
105  X.  W.  (Neb.)  714;  Dunn  v. 
Hazlitt,  4  O.  S.  435;  Allen  v.  Miller, 
11  0.  S.  374.  Where  two  joint 
makers  of  a  promissory  note  reside 
in  different  counties,  are  sued  before 
the  note  is  due,  in  the  county  in 
which  one  of  them  resides,  and  not 
in  the  county  where  the  other  re- 
sides, and  summons  is  served  on 
the  defendant  residing  in  the  county 
in  which  the  action  is  commenced, 
and  a  summons  and  order  of  attach- 
ment is  issued  to  the  other  county, 
and  is  there  served  on  the  defend- 
ant residing  in  that  county,  and  his 
property  therein  situated  is  at- 
tached, and  no  order  of  attachment 
is  issued  and  no  ground  for  attach- 
ment exists  as  against  the  defendant 
residing  in  the  county  in  which  the 
action  is  comenced,  heM,  that  the 
action  is  not  rightly  brought  in  the 


33  COMMENCEMENT    OF   THE   ACTION    TO   TRANSFER.  §  33 

An  action  to  recover  damages  under  the  act  requiring  com- 
pensation for  causing  death  by  wrongful  act,  neglect  or 
default,  may  be  brought  in  any  county  in  the  State  where  the 
defendant,  or  any  one  of  the  defendants,  reside  or  may  be 
served.  And,  in  such  case,  where  there  were  several  defend- 
ants, against  all  of  whom  a  good  cause  of  action  is  alleged, 
and  some  of  whom  are  served  in  the  county,  and  others  reside 
and  are  served  in  a  county  other  than  that  where  the  suit 
is  brought,  the  validity  of  the  service  of  summons  in  such 
other  county,  and  the  jurisdiction  of  the  court  over  the 
persons  of  the  nonresident  defendants,  depends  upon  the 
truth  of  the  allegations  of  the  petition.^^ 

The  statute  authorized  the  service  of  summons  upon  a 
railroad  company  in  any  county  through  which  its  road 
passes,  and  when  the  action  is  begun  in  any  of  such  counties, 
a  summons  may  issue  for  the  defendant  in  any  of  the  other 
counties  in  the  State.^^  The  statute  in  question  applies  where 
the  defendants  are  jointly  liable  in  the  action,  and  a  part 
of  them  reside  in  other  counties.^^  It  applies  also  where  one 
of  two  defendants  in  the  county  where  the  action  is  begun, 
acknowledged  service  on  the  back  of  the  summons.  In  such 
case,  summons  may  issue  and  be  served  upon  a  defendant 
living  in  another  county.-*' 

It  has  been  hold  that  a  party  who  seeks  to  rescind  a  con- 
tract for  the  exchange  of  real  property  by  an  action  insti- 
tuted in  the  county  where  the  real  estate  is  situated,  against 
persons  who  reside  in  another  county,  cannot,  after  they  have 
been  summoned  and  appear  in  the  action,  amend  his  petition, 
by  adding  thereto  a  second  cause   of  action  for  the  breach 

county  in  which  it  is  brought,  and  i8  Xewberry  v.  Railroad,  52  Kan. 

that    the    defendant    in    the    other  fil3,    35   Pac.   210. 

county  may.    for   that   reason,   have  i9  Horst     v.     Lewis,     98     N.     W. 

the  attachment  dissolved.     Ruhlman  (Neb.)    1,046.    But  where  the  plead- 

V.  Hulze,  32  Kan.   598,  5  Pac.   176.  ings   show   a  joint  and   several   lia- 

See   Section    18,   svpra.  bility,     the     rule    does    not    apply. 

iTDrea   v.    Carrington,    32    0.   S.  McKibbon  v.  Day,  98  X.  W.   (Neb.) 

595.  845. 

20Hendrix  v.  Fuller,  7  Kan.  332. 


§§34,35  merwine's  trial  of  title  to  land.  34 

of  the  covenants  of  warranty,  and  thus  blend  a  local  with  a 
transitory  cause  of  action.  He  must  be  confined  to  the  cause 
of  action  that  authorizes  such  a  service  of  summons.^^ 

Sec.  34.     Summons — Service  and  return. 

The  summons  must  be  served  and  returned  by  the  officer 
to  whom  it  is  delivered,  except  when  issued  to  any  other 
county  than  the  one  in  which  the  action  is  commenced,  within 
ten  days  from  its  date;  and  when  issued  to  another  county, 
it  must  be  made  returnable  in  not  less  than  ten  nor  more 
than  sixty  days  from  the  date  thereof,  at  the  option  of  the 
party  having  it  issued. ^- 

It  has  been  decided  by  a  court  of  last  resort  having  a 
statute  similar  to  the  above  that  where  the  summons  is  made 
returnable  less  than  the  said  ten  days,  neither  the  summons 
or  return,  is  void  or  voidable.-^  Where  the  summons  is  made 
returnable  more  than  ten  days  from  the  date  of  its  issue,  it 
is  not,  for  this  reason,  void,  where  the  answer  day  is  fixed 
in  the  summons  twenty  days  after  the  return  day,  and  a 
judgment  thereon  is  not  void,  and  cannot  for  such  irregu- 
larity be  enjoined.-*  A  summons  directed  to  the  sheriff  of 
the  county  in  which  the  action  is  brought,  is  not  void  or 
voidable  because  made  returnable  in  two  days.-^ 

Sec.  35.  The  summons— The  return  of  the  sheriff  may  be 
corrected  by  amendment. 
The  power  to  amend  the  return  of  the  sheriff  should  be 
liberally  construed,  and  with  a  view  to  promote  justice. 
Hence,  it  is  always  proper  and  competent  for  the  sheriff  to 
amend  his  return  in  order  that  it  may  speak  the  truth.  If 
the  officer,  in  making  his  return,  has  discovered  that  he  has 

ziNeal  V.  Reynolds.  38  Kan.  432,  114;  Jewell  v.  Morse.  21  Kan.  734; 
16  Pac.  785.     See  Section  18,  supra.       Ryan  v.  Cranslow,  27  Kan.  672. 

22  Snyder,    5,595;    Wilson,    4.261;  24  Lawton    v.    Nicholas,    12    Okla. 

Kansas,   4,491    (1901),  identical.  550,   73   Pac.   263. 

23Clough   V.   McDonald,    18    Kan.  25  Swerdsferger  v.  State,  21   Kan. 

495. 


35  COMMENCEMENT    OF    THE    ACTION    TO   TRANSFER.    §§  36,  37 

committed  an  error,  or  has  failed  to  state  some  particular 
facts  in  relation  thereto,  he  should  make  application  to  the 
court  to  correct  and  amend  his  return  for  the  purpose  of 
obtaining  a  record  that  shall  contain  the  exact  truth,  and 
such  amendment  should  be  allowed  by  the  court  in  the 
furtherance  of  justice.-'' 

Sec.  36.  How  objection  made  to  irregnlar  service — May  plead 
to  merits  without  entering  appearance,  how. 
Where  the  service  of  summons  is  irregular,  and  a  motion 
to  quash  and  vacate  the  same  has  been  made  and  overruled, 
and  exceptions  saved,  the  point  is  not  waived  by  the  defend- 
ant afterward  pleading  to  the  merits  of  the  case.-^ 

Sec.  37.  Evidence  may  be  given  in  aid  of  sheriff's  return, 
when. 

Where  the  return  of  a  sheriff  who  has  served  a  summons 
on  the  defendant  personally  is  ambiguous,  and  open  to  the 
construction  that  but  one  copy  was  delivered  to  both  de- 
fendants, parol  evidence  is  admissible  to  show  that  no  service, 
in  fact,  was  had  on  one  of  the  defendants.-^ 

While  proof  may  not  be  admissible  for  the  purpose  of 
contradicting  a  sheriff's  return  on  a  writ  of  restitution,  it  is 
not  error  to  admit  evidence  as  to  the  manner  in  which  the 
writ  was  executed,  and  to  show  that,  while  the  sheriff  did 
technically  give  possession  to  the  plaintiff,  the  defendants  in 

26  Paine  v.  Long,  etc.,  9  Okla.  683,  isdiction    concurrent    with    the    dis- 

60  Pac.  235 ;  Barker  v.  Central,  105  trict    court,    are    considered    in    the 

N.  W.    (Neb.)    985;    see,   also,   Gulf  same  manner  and  with  like  intend- 

V.     James,    48     Fed.     Rep.     148,     1  ment,    as    proceedings    in   courts   of 

C.   C.   A.   53.  general    jurisdiction;    and    its    rec- 

27Beeline    v.    Schmidt,    16    Okla.  ords,  orders,  judgments  and  decrees 

429,  85   Pac.   711;    Same  v.   Taylor,  are   accorded    like    force,   effect   and 

16  Okla.  481,  85  Pac.  713.  legal    presumption    as    the    records, 

28  Jackson    v.    Tenney,     17    Okla.  orders,    judgments    and    decrees    of 

495,  87  Pac.  867.     Under  the  statute  the    district    court.      Carmichael    v. 

of  the  territory,  proceedings  in  the  Pierce,  10  Okla.  176,  61  Pac.  583. 
probate  court,  when  exercising  jur- 


§§38,39  merwine's  trial  of  title  to  land.  36 

fact,   retained   actual   possession    and   kept   the   plaintiff   out 
after  the  sheriff  had  made  his  return.-^ 

Sec.  38.    Alias  smnmons  may  issue,  when. 

When  the  writ  is  returned  "not  summoned,''  other  writs 
may  be  issued,  until  the  defendant  or  defendants  are  sum- 
moned; and  when  the  defendants  reside  in  different  coun- 
ties, writs  may  issue  to  such  counties  at  the  same  time."" 

Sec.  39.     By  whom  summons  may  be  served. 

The  summons  must  be  served  by  the  officer  to  whom  it  is 
directed,  who  is  required  to  indorse  on  the  writ  the  time  and 
manner  of  service.  It  may  also  be  served  by  any  person, 
not  a  party  to  the  action,  appointed  by  the  officer  to  whom 
it  is  directed.  The  authority  of  such  person  must  be  in- 
dorsed on  the  writ.  When  the  w^rit  is  served  by  a  person 
appointed  by  the  officer  to  whom  it  is  directed,  or  when 
the  service  is  made  out  of  this  State,  the  return  must  be 
verified  by  oath  or  affirmation.^^ 

If  the  summons  is  directed  to  the  sheriff  of  one  county, 
this  will  not  authorize  the  sheriff  of  another  county  to  make 
service.^-  The  statute  authorizes  the  service  of  the  writ  by 
anyone  not  a  party  to  the  action,  but  the  person  who  serves 
the  writ  must  be  appointed  by  the  officer,  and  the  authority 
of  such  person  must  be  indorsed  on  the  w^rit.     This  is  im- 

29  Richardson  v.  Penny,  10  Okla.  When  a  void  summons  is  issued, 
32,  61  Pac.  584.  another  may   issue  at  once  without 

30  Snyder,  5,596;  Wilson,  4,262;  an  order  of  court.  Walker  v. 
Ohio  Gen.  Code,  Sec.  11,284  (1910),  Stevens,  72  X.  W.  (Xeb.)  1,038; 
identical;  Xebraska,  1,068  (1907),  see,  also.  Ensign  v.  Roggencamp, 
identical.      The   service   of   an   alias  12  X.  W.    (Xeb.)    811. 

summons  issued   and   served  within  3i  Snyder,    5,597 ;    Wilson,    4,263 ; 

the  life  of  a  prior  summons,  is  not  tXebraska,    1,069    (1907),   identical; 

void  or  voidable,  when,  at  the  time  Ohio  Gen.  Code,  Sec.  11,285   (1910), 

the  same  was  issued,  the  prior  sum-  identical. 

mons  was  not  in  the  hands  of  the  32  Collins    v.    Baltimore,    7    X.   P. 

officer   or    under   his   control.      Wil-  270. 

liams    V.    Welton,    28    0.    S.    451. 


37  COMMENCEMENT    OF    THE    ACTION   TO   TRANSFER.   §§40,41 

perative  language  and  admits  of  no  doubtful  meaning.^^  If 
the  summons  is  directed  to  the  sheriff  of  a  particular  county, 
it  cannot  then  be  served  by  a  private  person  unless  appointed 
by  such  sheriff  for  that  purpose.^*  Unless  especially  ap- 
pointed for  that  purpose  by  statute,  a  court  bailiff  has  no 
authority  as  such,  to  serve  process.^^ 

Sec.  40.  Summons — Service  by  responsible  citizen — Verifica.- 
tion  of  return. 
Service  of  summons  in  civil  actions  in  the  district,  superior, 
county  and  justice  courts  of  this  State,  may,  in  addition  to 
the  other  provisions  of  law,  be  served  by  any  responsible 
citizen  of  the  county,  appointed  by  the  court  in  which  the 
action  is  brought,  by  delivering  a  true  copy  thereof  to  the 
person  named  in  the  summons;  or  by  delivering  a  true  copy 
thereof  to  some  member  of  the  family  above  the  age  of 
fifteen  years,  at  the  residence  of  the  person  named  in  the  sum- 
mons. Return  of  service  of  summons  when  made,  as  herein 
provided,  shall  be  attested  and  sworn  to  by  the  party  making 
the  same.^° 

Sec.  41.     Summons— Service  personal— Place  of  residence. 

The  service  must  be  made  ])y  delivering  a  copy  of  the 
summons  to  the  defendant  personally,  or  by  leaving  one  at 
his  usual  place  of  residence,  with  some  member  of  his  family 
over  fifteen  years  of  age  at  any  time  before  the  return  day." 

If  the  sheriffs  return  is  that  he  left  a  copy  of  the  summons 
at  the  residence  of  the  defendant,  it  is  sufficient  service. 
There  is  no  substantial  difference  between  the  residence  of  a 
person  and  his  usual  place  of  residence.^«    A  summons  against 

3.-?Barrv  v.  novev,   30   O.   S.   348.  37  Snyder,  5,.508:   Act  of  January 

34  Republic    V.    Savre,    13    X.    W.  29.    1008;    see   Kerney  v.   Harris,   3 

(Neb.)    404.                 "  Ind.  Ter.   487,   58   S.  W.   567,  as  to 

3.-.  Creswell    v.    Craig,    9     N.    W.  service  by  delivering  to  wife  at  de- 

(Veh  )    5-^  fendant's  place   of  abode. 

'aeAct  of  March  15,  1910.  ^^Walk  v.  Bank,  15  Ohio,  288. 


§  41  MERWINE  'S   TRIAL    OF   TITLE    TO   LAND.  38 

A.  and  B.  who  were  husband  and  wife,  was  returned  and 
indorsed:  "Service  made  by  leaving  at  each  of  the  above 
named  defendants  usual  place  of  residence  a  certified  copy 
of  the  within  summons."  This  was  held  a  good  service  upon 
each  of  the  defendants.^''  And  where  the  service  is  personal 
service  by  the  sheriff  or  his  deputy,  of  the  original  writ  of 
summons  upon  a  defendant,  and  the  proper  return  thereof 
made  by  such  officer  on  a  duplicate  writ  issued  by  the  clerk 
of  the  court,  this,  it  has  been  held,  was  a  substantial  compli- 
ance with  the  statute*" 

Under  the  statute,  it  is  not  service  of  summons  to  leave  it 
at  defendant's  usual  place  of  business,*^  nor  is  it  good  service 
where  the  sheriff  in  a  case  where  the  summons  was  issued 
against  three  defendants,  makes  his  return  in  these  words : 
"Served  by  leaving  a  copy  of  this  writ  at  the  residence  of 
the  within  named  defendant,"  nor  is  it  good  service  against 
all  of  the  defendants,  or  against  either  of  them,  or  any  of 
them.*-  Nor  will  the  service  be  sufficient  where  the  sheriff's 
return  does  not  state  that  he  gave  the  defendant  a  copy  of 
the  indorsements  on  the  summons ;  *^  nor  can  the  defendant 
be  served  by  leaving  a  copy  at  his  store.** 

In  the  note  below  will  be  found  a  copy  of  the  Ohio  statute, 
under  which  the  foregoing  decisions  were  rendered.*^ 

39  Elliot  V.  Platter,  43  0.  S.   108.  at  his  usual   place  of  residence,  or, 

40  Ohio  Gen.  Code,  Sees.  11,285  if  the  defendant  is  a  partnership, 
and  11,286.  sued    by    its    company's    name,    by 

41  Lambert  v.  Sample,  25  0.  S.  leaving  a  copy  at  its  usual  place  of 
336.  doing  business,  or  with  any  member 

42  Gamble  v.  Warner,  16  Ohio,  of  such  partnership ;  and  the  return 
371.  must  be  made  at  the  time  mentioned 

43  Bronton  v.  Allston,  4  W.  L.  M.  in  the  writ,  and  the  time  and  man- 
588.  ner    of    service    shall    be    stated    on 

44  Hays  V.  Bank,  W.  563.  the  writ."     The  statutes  of  Kansas 

45  "Service  is  made  by  delivering,  and  Nebraska  are  not  identical  with 
at  any  time  before  the  return  day,  the  statute  of  this  State,  and  we, 
a  copy  of  the  summons,  with  the  therefore,  do  not  cite  any  decided 
indorsements  thereon,  to  the  defend-  cases    from   these   States. 

ant  personally,  or  by  leaving  a  copy 


39  COMMENCEMENT    OF    THE    ACTION   TO   TRANSFER.    §§42,43 

Sec.  42.    Return  must  state  what. 

In  all  eases  the  return  must  state  the  time  and  manner 
of  service;*"  and  the  officer,  to  whom  the  summons  is  di- 
rected, must  return  the  same  at  the  time  therein  stated.*^ 

Sec.  43.    Does  the  return  of  the  sheriff  import  absolute  verity? 

The  return  of  the  sheriff  as  to  all  matters  of  which  he  has 
personal  knowledge  is  conclusive  between  the  parties,  and 
cannot  be  questioned  in  an  action  afterwards  brought  to 
enjoin  the  enforcement  of  a  judgment  based  on  such  service 
on  the  ground  that  the  court  was  without  jurisdiction  of  the 
person  of  the  defendants.*^ 

The  proposition  above  set  forth  was  promulgated  by  the 
Supreme  Court  of  Kansas,*''  with  some  hesitancy,  but  in  a 
well  considered  case,  the  rule  was  adopted  by  that  court. 
We  here  quote  from  the  opinion  of  the  court  and  the  review 
of  the  decided  cases  on  the  proposition: 

"But  the  real  question  in  the  case  is  whether  there  may  be 
any  contradiction  of  the  return  outside  of  the  record  itself. 
In  England  it  has  been  the  established  law  from  a  very  early 
day  that  the  return  is  conclusive  as  between  the  parties,  and 
that  the  remedy  of  a  party  injured  by  a  false  return  is  by 
an  action  against  the  sheriff  on  his  official  bond;  in  which 
case  alone  the  truth  or  falsity  of  the  return  may  be  inquired 
into.^"  In  this  country  there  is  much  diversity  of  judicial 
opinion  on  the  subject,  but  the  decided  weight  of  authority 
seems  to  support  the  position  that  as  to  matters  falling  within 
the  personal  knowledge  of  the  sheriff,  his  return  is  conclu- 
sive as  between  the  parties  to  the  record  unless  the  falsity  of 
the  return  is  disclosed  by  some  other  portion  of  the  record 

46  Snyder,    5.061;    Wili=on.    4.265;  744,  44  Pac.  1,0.55;  see,  also,  McNeal 
Kansas,     4,495      (1901),     identical;  v.   Eddy,   24  Kan.    109. 
Nebraska,    1,071     (1907),    identical.  49  Goddard   v.    Harbour,    56    Kan. 

47  Snyder.  5,602;  Wilson,  4,266.  744,  44  Pac.   1,055. 

48  Goddard  v.    Harbour,    56    Kan.  so  19  Vin.  Abr.  210,  6  Com.  Dig. 

242. 


§  43  merwine's  trial  of  titile  to  land.  40 

of  the  case.*^^  These  eases  hold  that  the  return  of  the  officer 
is  conclusive  on  the  question  of  jurisdiction.  It  is  not  neces- 
sary now  to  inquire  how  far  the-  court  may  go  in  setting 
aside  a  service  when  challenged  in  the  suit  in  which  it  is 
made  before  judgment.  In  this  case  the  only  ground  on 
which  the  judgment  of  the  trial  court  can  be  maintained  is 
that  the  court  was  without  jurisdiction  to  render  the  judg- 
ment in  the  prior  action.  The  following  cases  seem  to  sup- 
port the  doctrine  that  a  want  of  jurisdiction  may  be  shown 
at  any  time,  and  that  the  return  of  the  sheriff  is  only  prima 
facie  evidence  of  the  facts  stated.^-  The  courts  of  Georgia 
and  New  York,  while  recognizing  the  existence  of  the  general 
rule,  hold  that  under  the  practice  prevailing  in  those  States 
the  officer's  return  is  not  conclusive.^^  It  was  said  in  the 
opinion  in  the  last  mentioned  case:  "The  learned  annotators 
of  Smith's  Leading  Cases,  Hare  and  Wallace,^*  sum  the  matter 
up  by  saying:  'Whatever  the  rule  may  be  where  the  record 
is  silent,  it  would  seem  clearly  and  conclusively  established 
by  a  weight  of  authority  too  great  for  opposition,  unless  on 
the  ground  of  local  and  peculiar  law,  that  no  one  can  contra- 
dict that  which  the  record  actually  avers,  and  that  a  recital 
of  notice  or  appearance,  or  a  retiirn  of  service  by  the  sheriff 
in  the  record  of  a  domestic  court  of  general  jurisdiction,  is 
absolutely  conclusive,  and  cannot  be  disproved  by  extrinsic 
evidence.'  It  is  quite  remarkable,  however,  that,  notwith- 
standing the  formidable  array  of  authority  in  its  favor,  the 
courts  of  this  State  have  never  sustained  this  doctrine  by  any 

51  Hunter  v.   Stonebiirner,   92   111.  Stewart,  27  W.  Va.   167;   22  Am.  & 

75;  Cully  v.  Shirk,  30  N.  E.   (Ind.)  Eng.  Enc.  Law,   193. 

882;  Stewart  v.  Griswold,  134  Mass.  "'2  Dunklin  v.  Wilson,  64  Ala.  162; 

391;   Green  v.  Kindy,  43  Mich.  279,  Watson    v.    Watson,    6    Conn.    334; 

5  X.   W.  297:   Tullis  v.  Brawley,   3  Quarles  v.   Hiern,   70   Miss.   891,   14 

Minn.   277     (Gil.    191);    Stewart   v.  So.  23;  Pollard  v.  Wegener,  13  Wis. 

Stringer,     41     Mo.     40;     Voiles     v.  569. 

Bowen,   45   N.   H.   124;    Barrows   v.  ss  Dozier    v.    Lamb,    59    Ga.    461; 

Rubber,  1 3  R.  I.  48 ;   Gatlin  v.  Dib-  Ferguson  v.  Crawford,  70  N.  Y.  253. 

rell,  74  Tex.  36,  11  S.  W.  908 ;  Bank  S4  i  Smith  Lead.  Cases,  842. 
V.  Downers,  29  Vt.  332 ;  Stewart  v. 


41  COMMENCEMENT   OF    THE    ACTION   TO   TRANSFER.  §  43 

adjudication,  but,  on  the  contrary,  the  great  weight  of  judicial 
opinion,  and  the  views  of  some  of  our  most  distinguished 
jurists,  are  directly  opposed  to  it."  In  the  note  below  will 
be  found  the  cases  cited  as  supporting  the  proposition  that 
the  sheriff's  return  may  be  disputed;  even  in  regard  to  per- 
sonal service."'^ 

In  the  cases  heretofore  decided  by  this  court  the  right  to 
controvert  the  sheriff's  return  has  been  expressly  limited  to 
matters  not  coming  within  his  personal  knowledge,  and  the 
opinions  in  all  the  cases,^*^  recognize  this  distinction.  We  do 
not  approve  the  rule  declared  in  the  opinion  in  the  case  of 
Jones  V.  Marshall  that  a  sheriff's  return  may  be  controverted 
as  to  matters  falling  within  his  personal  knowledge.  Much 
can  be  said  by  way  of  argument  for  and  against  the  rule 
which  makes  the  sheriff"s  return  conclusive.  We  deem  it  the 
safer  course  to  yield  our  assent  to  a  rule  which  has  met  with 
the  approbation  of  so  large  a  majority  of  the  courts,  and 
incline  to  the  opinion  that  the  weight  of  reason  rests  with 
that  of  authority.  This  case  fairly  illustrates  the  dangers 
and  difficulties  arising  if  the  opposite  rule  is  followed.  Where 
there  is  a  return  of  personal  service,  ordinarily  the  person 
served  will  be  the  only  witness  who  can  flatly  contradict  it, 
unless  the  officer  himself,  does  so.  The  service  on  John  J. 
Harbour  was  entirely  regular,  and  a  summons  was  left  at 
the  residence  of  Frances  J.  Harbour,  if  not  in  fact  handed 
to  her  in  person,  as  testified  by  Brown.  To  set  aside  and 
annul  a  judgment  duly  entered  on  such  slight  proof  of 
what  can  hardly  be  termed  more  than  a  technical  defect  in 
the  service,  is  certainly  establishing  a  bad  precedent,  and, 
in  our  view,  a  much  more  dangerous  one  than  the  rigid  rule 
which  we  deem  best  to  follow  in  this  case.  Under  all  the 
authorities,  the  proof  required  to  controvert  a  sheriff's  return 
must  be   clear  and   convincing.     But,   if  we  were  to  permit 

55  Bond    V.   Wilson.    S    Kan.    228;  108:     Jones    v.    Marshall,    43    Pac. 

Starkweather    v.    Morgan.    15    Kan.  840. 

274;    Chambers   v.   Manufactory,    IG  56  including   Mastin   v.    Gray,    19 

Kan.  270;  McXeill  v.  Edie,  24  Kan.  Xan.  458. 


§  44  MERWINE  'S   TRIAL   OF   TITLE   TO   LAND.  42 

an  inquiry  into  its  truth,  we  should  be  met  in  every  case 
brought  to  this  court,  by  the  other  rule  that  the  decision  of 
the  trial  court  on  a  disputed  question  of  fact  is  final.  We 
should  then  rest  under  the  necessity  of  affirming  judgments, 
like  the  one  now  under  consideration,  or  of  weighing  con- 
flicting testimony.  The  hardships  which  may  possibly  result 
from  the  rule  adopted  are  not  so  great  nor  so  probable  as 
might  at  first  appear,  when  it  is  considered  that  the  sheriff 
acts  under  oath,  and  is  responsible  on  his  official  bond.  If  he 
makes  a  mistake,  the  court  to  which  the  process  is  returned 
may  permit  him  to  amend.  The  proceedings  of  our  district 
courts  are  matters  of  general  notoriety.  Judgments  are  not 
entered  here,  as  in  New  York,  by  the  clerk  in  vacation,  but 
must  always  be  taken  in  open  court.  In  giving  conclusive- 
ness to  a  sheriff's  return  as  to  those  matters  coming  within 
his  personal  knowledge,  we  do  no  more  than  give  it  the  same 
credit  as  the  parts  of  the  record  written  by  the  clerk,  any 
of  which  may  be  corrected  under  the  direction  of  the  court 
when  application  is  duly  made,  but  cannot  be  contradicted  by 
parol  testimony. ' '  ^^ 

However,  there  is  no  doubt  that  an  improper  return  of  the 
officer,  when  it  does  not  speak  the  truth,  can  always  be  cor- 
rected by  the  court,  if  the  proper  party  by  proper  proceeding, 
within  time,  seeks  to  correct  it.  But  the  correction  will  not 
be  made  if  the  evidence  is  not  clear  and  convincing.  The 
sheriff's  return  carries  with  it  every  legal  presumption.'^* 

Sec.  44.     The  officer's  return  may  be  corrected  by  amendment. 

If  application  be  made  to  correct  the  officer's  return  of 
summons  in  proper  time,  and  in  a  proper  case,  evidence  may 

5'  By    the    court    in    Goddard    v.  action  duly  made  by  a  sworn  officer, 

Harbour,  56  Kan.  744,  44  Pac.  1,055.  is,  between  parties  and  privies,  and 

58  Starkweather     v.     Morgan,     15  to    others,    whose   rights   are   neces- 

Kan.   274;    Kirkwood   v.    Reedy,    10  sarily    dependent,    conclusive    as    to 

Kan.   453;    Bond  v.   Wilson,  8   Kan.  the   facts    stated    therein,    until    va- 

231 ;     Button    v.    Hobson,     7    Kan.  cated  or  set  aside  by  a  judgment  of 

196;    Ingraham  v.  ISIcGraw,  3   Kan.  the  courts  of  law.     Phillips  v.   Ell- 

521.     An  official  return  of  the  man-  well,  14  0.  S.  240;  Guinn  on  Sheriffs, 

ner    of    service    of    summons    in    an  473. 


43  COMMENCEMENT    OF    THE    ACTION   TO   TRANSFER.  §  45 

be  given  to  impeach  it,  and  when  it  is  shown  not  to  speak 
the  truth,  it  may  be  amended  so  as  to  require  it  to  speak 
the  truth. ^'^ 

Sec.  45.  When  acknowledgment  of  service  equivalent  to 
service  of  summons. 

The  statute  provides  that  acknowledgment  on  the  back  of 
the  summons,  or  the  voluntary  appearance  of  the  defendant, 
is  equivalent  to  service."" 

The  usual  form  for  the  entry  of  appearance  is  the  filing  of  a 
separate  paper  in  the  case,  wherein  the  defendant  says  that 
he  waives  the  issuing  and  service  of  summons  upon  him,  and 
voluntarily  enters  his  appearance  in  the  action. 

In  addition  to  the  above  methods  of  entering  appearance 
in  the  case,  appearance  may  be  entered  by  filing  a  motion 
or  demurrer,  or  even  by  the  making  of  an  oral  application 
in  the  case  to  the  court.  Our  courts  hold  that  if  the  de- 
fendant desires  to  object  to  the  insufficiency  of  service  of 
summons,  or  other  jurisdictional  defects  in  the  process  by 
which  the  court  acquires  jurisdiction  over  his  person,  he 
should  do  so  by  motion,  and  in  his  motion,  or  motions, 
declare  that  he  appears  for  the  purpose  of  the  motion  only, 
not  intending  in  any  manner  to  enter  his  appearance  therein, 
and  protest  against  the  jurisdiction  of  the  court,  and  ask 
that  the  pretended  service  of  summons,  as  to  him,  be  quashed 
and  set  aside.  The  cases  on  the  subject  are  too  numerous  to 
discuss,  and  a  list  thereof  will  be  found  in  the  note  below.*^ 

59  Repp  V.  Kyle,  26  Kan.  89;  652;  Watson  v.  Paine,  25  0.  S. 
Starkweather  v.  Morgan,  15  Kan.  340;  Maholm  v.  ila-shall,  29  O.  S. 
274;  Kirkwood  v.  Reedy,  10  Kan.  611;  Fee  v.  Big,  etc.,  13  0.  S.  563; 
453;  Bond  v.  Wilson,  8  Kan.  231;  Evans  v.  Illes,  7  O.  S.  233;  O'Neal 
Button  V.  Hobson,  7  Kan.   196.  v.  Blessing,  34  0.  S.  34;   Kinkead's 

60  Snyder,  5,603;  Wilson,  4,267;  Practice,  Sec.  160;  Tallman  v. 
Kansas,  4,497  (1901).  identical;  Baltimore,  45  Fed.  Rep.  156 ;  White- 
Nebraska.  1,073  (1907),  identical;  head  v.  Post,  3  W.  L.  M.  (Ohio), 
Ohio  Gen.  Code,  Sec.  11,287  (1910),  195;  White  v.  Friese.  2  C.  S.  C.  R. 
identical.  30;    Mawwick  v.  Wolf,   3   W.  L.  B. 

eiGodfred  v.  Godfred,  30  0.  S.  458;  Allen  v.  Miller,  11  0.  S.  374. 
53;    Brundige    v.    Beggs,    25    0.    S. 


§  46  MERWINE  'S   TRIAL   OF   TITLE    TO    LAND,  44 

Sec.  46.     Summons — Service  on  corporations. 

A  summons  against  a  corporation  may  be  served  upon  the 
president,  mayor,  chairman  of  the  board  of  directors,  or 
trustees,  or  other  chief  officer;  or,  if  its  chief  officer  is  not 
found  in  the  county,  upon  its  cashier,  treasurer,  secretary, 
clerk  or  managing  agent;  or,  if  none  of  the  aforesaid  officers 
can  be  found,  by  a  copy  left  at  the  office  or  usual  place  of 
business  of  such  corporation,  with  the  person  having  charge 
thereof. '"'- 

It  is  sometimes  (luite  difficult  to  understand  just  exactly 
what  is  meant  by  the  term  "managing  agent."  A  corpora- 
tion sent  a  letter  to  its  counsel  in  Avhich  a  certain  person 
was  designated  as  "our  managing  agent,"  and  no  evidence 
appeared  that  such  person  had  any  control  over  any  portion 
of  the  company's  affairs.  Such  person  was  not  a  managing 
agent  within  the  meaning  of  the  statute. "^^ 

The  court,  in  this  last  ease,  said  that  the  term  "managing 
agent,"  has  been  defined  to  be  an  agent  having  general 
supervision  over  the  affairs  of  a  corporation."* 

Where  an  express  company  had  a  "general  superintendent" 
at  Cleveland,  Ohio,  for  the  State,  and  two  or  more  "local 
agents"  in   IMadison  County,   Ohio,   one  of  whom  resided  at 

"2  Snyder.    .5.G04;    Wilson,    4.268;  on  inferior  officer.     Cole  v.  Lombard, 

Kansas,     4,498      (1901),     identical;  66  Kan.  2.51,  71   Pac.  .584.     Service 

Nebraska,    1,074     (1907),    identical.  to  be  valid  must  be  upon  the  officer 

Service  on   the    secretary   is   insuffi-  or  persons  designated  in  the  statute, 

cient  unless  the  president  is  absent.  Chambers    v.    King,    16    Kan.    270. 

Cunningham    v.    Roller,    105    O.    S.  For   discussion  of  the   term,   "man- 

676.     Subordinate   officer   cannot  be  aging  agent,"  see  Ord  v.   Case,   110 

served   in   absence   of   showing   that  N.    W.     (Neb.)     551;     Fremont    v. 

the  superior  cannot  be  served.   Ozark  .Railroad,    92    X.    W.     (Xeb. )     131. 

V.    Still,    24    Okla.    559,     103    Pac.  If  the  persons  served  be  not  officers 

586;    Palmetto   v.    Rucker,    1    Kan.  at     the     time,     judgment     is     void. 

561.      Summons    in    garnishee    pro-  Campber  v.  Marder,  69  X.   W.  901. 

ceedings    cannot    be    served    on    in-  63  Bucket  v.  Eagle,  etc.,  21   C.  C. 

ferior    officer,     see    Ravid,    etc.,    v.  (Ohio),  229. 

Wilson,  22   Okla.  .689,  98   Pac.   949.  64  Upper,    etc.,    v.     Whitaker,     16 
Recital  in  the  return  that  the  presi-  Wis.   233;    Anderson's  Law  Diction- 
dent  or  other  chief  officer  is  absent  ary. 
is     sufficient     to     authorize    service  * 


45  COMMENCEMENT    OF    THE    ACTION    TO   TRx\.NSFER.    §§47,48 

London,  in  said  county,  and  kept  an  office  there,  where  he 
received  and  forwarded  packages  for  the  company,  and  did 
all  the  business  of  the  company  usually  transacted  in  such 
receiving  and  forwarding  offices,  he  is  a  managing  agent 
within  the  meaning  of  the  statute.*^^ 

The  tendency  of  legislation  and  the  policy  of  the  law  has 
been  to  facilitate  the  obtaining  of  service  on  foreign  cor- 
porations.*" 

Sec.  47.     Constitutional  provision  as  to  service  of  summons 
upon  foreign  corporation. 

It  is  provided  by  the  Constitution  of  this  State  that  suit 
may  be  commenced  against  a  foreign  corporation  in  the 
county  where  the  agent  of  such  corporation  may  be  found, 
or  in  the  county  of  the  residence  of  the  plaintiff,  or  the 
county  where  the  cause  of  action  may  arise."^ 

Sec.  48.  Foreign  corporation  required  to  file  copy  of  charter 
— Mast  appoint  resident  agent  upon  whom  sum- 
mons may  be  served. 
No  corporation  except  created  solely  for  religious  or  chari- 
table purposes,  may  transact  business  within  this  State,  until 
it  has  filed  in  the  office  of  the  secretary  of  state,  a  certified 
copy  of  its  charter  or  articles  of  incorporation,  which  must 
be  recorded  in  a  book  to  be  kept  by  the  secretary  of  State 
for  that  purpose,  and  must  have  paid  the  fees  required  by 
law.  Every  foreign  corporation  must,  before  it  will  be 
authorized  or  permitted  to  transact  business  in  this  State,  or 
continue  business  therein  if  already  established,  must,  by  its 
certificate  under  the  hand  of  the  president  and  seal  of  the 
company,  appoint  an  agent,  who  must  be  a  citizen  of  the 
State,  and  reside  at  the  State  capital,  upon  whom  service  of 
process  may  be  made  in  any  action  in  which  said  corporation 

65  American,   etc.,   v.    Johnson,    17  ss  Railroad  v.  Transportation  Co., 

O.  S.  640;   Railroad   v.  Transporta-       32  0.  S.  135. 

tion  Co.,  32  0.  S.  135.  ^^  Constitution  of  Oklahoma,  Art. 

9,  Sec.  44. 


§  49  merwine's  trial  of  title  to  land.  46 

be  a  party;  and  that  said  action  may  be  brought  in  any 
county  ill  which  the  cause  of  action  arose,  as  now  provided 
by  law  "was  transacted,"  and  service  upon  such  agent  will 
be  taken  and  held  as  due  service  upon  said  corporation,  such 
certificate  must  also  state  the  principal  place  of  business  of 
such  corporation  in  this  State,  with  the  address  of  the  resi- 
dent agent.  A  duly  authenticated  copy  of  the  appointment 
and  commission  of  such  agent  must  be  filed  and  recorded 
in  the  office  of  the  secretary  of  State,  for  which  a  fee  (there- 
for) of  one  dollar  must  be  paid  to  the  secretary,  and  a  like 
fee  of  one  dollar  for  each  subsequent  appointment  of  any 
agent  so  filed. 

A  certified  copy  of  the  appointment  of  such  agent  under 
the  hand  and  seal  of  the  secretary  of  State,  will  be  sufficient 
evidence  of  the  appointment  of  such  agent  in  any  court. 
The  secretary  of  State  is  required  to  prepare  a  list  for  dis- 
tribution, giving  the  names  of  all  corporations,  with  the 
name  of  their  agent,  showing  the  address  of  the  agent  by 
street  and  number,  and  must  include  the  same  in  his  biennial 
report  to  the  governor.®' 

Sec.  49.  When  no  resident  ag-ent  designated  service  of  sum- 
mons upon  foreign  corporation  may  be  upon 
secretary  of  State. 

It  is  provided  upon  this  subject  by  statute,  that  in  all  cases 
where  a  cause  of  action  accrues  to  resident  or  citizen  of  the 
State  of  Oklahoma,  by  reason  of  any  contract  with  a  foreign 
corporation,  or  where  any  liability  on  the  part  of  a  foreign 
corporation  accrues  in  favor  of  any  citizen  or  resident  of 
this  State,  whether  in  tort  or  otherwise,  and  such  foreign 
corporation  has  not  designated  an  agent  in  this  State  upon 
whom  process  may  be  served,  or  has  not  an  officer  continu- 
ously residing  in  this  State,  upon  whom  summons  or  other 
process  may  be  served  so  as  to  authorize  a  personal  judg- 
ment, service  of  summons  or  any  other  process  may  be  had 

«8  Snyder,  1,540;  Act  of  March  22,  1909, 


47  COMMENCEMENT    OF   THE   ACTION   TO   TRANSFER.  §§50,51 

upon  the  secretary  of  State,  and  such  service  will  be  sufficient 
to  give  jurisdiction  of  the  person  to  any  court  in  this  State 
having  jurisdiction  of  the  subject-matter  whether  sitting  in 
the  county  where  the  secretary  of  State  is  served  or  else- 
where in  the  State. 

The  statute  provides  that  it  will  not  be  effective  in  cases 
where  its  enforcement  might  conflict  with  the  powers  of 
Congress  on  the  Federal  laws  to  regulate  commerce  between 
the  States."* 

Sec.  50.  Summons  on  railroad  and  stage  company — Desig- 
nated agent. 
Every  railroad  company  or  corporation,  and  every  stage 
company  doing  business  in  the  State  of  Oklahoma,  or  having 
an  agent  doing  business  therein  for  such  corporation  or 
company,  is  hereby  required  to  designate  some  person  re- 
siding in  each  county,  into  which  its  railroad  line  or  stage 
route  may  or  does  run,  or  in  which  its  business  is  trans- 
acted, upon  whom  all  process  and  notices  issued  by  any  court 
of  record  or  justices  of  the  peace  of  such  county  may  be 
served.'" 

Sec.  51.  Summons — Certificate  of  appointment  of  designated 
agent. 
In  every  case  such  railroad  company  or  corporation,  and 
stage  company,  shall  file  a  certificate  of  the  appointment  and 
designation  of  such  person,  in  the  office  of  the  clerk  of  the 
district  court  of  the  county  in  which  such  person  resides; 
and  the  service  of  any  process  upon  the  person  so  designated 
in  any  civil  action,  shall  be  deemed  and  held  to  be  as  effectual 
and  complete  as  if  service  of  such  process  were  made  upon 

89  Snyder,  1,542;  Act  of  March  22,  see  Atchison  v.  Sage,  49  Kan.  524, 

1909.  31    Pac.    140;    Kansas   v.   Thatcher, 

70  Snyder,    5,605;    Wilson,    4,269;  17  Kan.  92.     Where  action  may  be 

Kansas,     4,449      (1901),     identical.  brought,  see  Hannibal  v.  Kanallay, 

As    to    service    of    notice    to    take  39    Kan.    1,    17    Pac.    324. 
depositions    on    railroad    company. 


§  §  52,  53  MERWINE  'S   TRIAL    OF   TITLE   TO   LAND.  48 

the  president,  or  other  chief  officer  of  such  corporation,  or 
stage  company.  Any  railroad  company,  corporation  or  stage 
company  may  revoke  the  appointment  and  designation  of 
such  person  upon  whom  process  may  be  served,  as  herein- 
before provided,  by  ai)pointiug  any  other  person  ([ualified 
as  above  specified,  and  filing  a  certificate  of  such  appointment, 
as  aforesaid ;  but  every  second  or  subsequent  appointment 
must  also  designate  the  person  whose  place  is  filled  by  such 
appointment.^^ 

Sec.  52.  Failure  to  designate  agent,  local  agent  may  be 
served,  when. 
If  any  railroad  or  stage  company,  or  corporation,  fail  to 
designate  or  appoint  such  person,  as  in  the  preceding  section 
is  provided  and  required,  such  process  may  be  served  on 
any  local  superintendent  of  repairs,  freight  agent,  agent  to 
sell  tickets,  or  station  keeper,  of  such  company  or  corpora- 
tion in  such  county,  or  such  process  may  be  served  by  leaving 
a  copy  thereof  certified  by  the  officer  to  whom  the  same  is 
directed,  to  be  a  true  copy,  at  any  depot  or  station  of  such 
company  or  corporation,  in  such  county,  with  some  person 
in  charge  thereof,  or  in  the  employ  of  such  company  or 
corporation,  and  such  service  will  be  held  and  deemed  com- 
plete and  effectual." 

Sec.  53.    Service  by  leaving  copy  at  residence  of  agent. 

In  all  cases  where  service  of  any  process  cannot  be  had 
upon  the  person  designated  by  such  company  or  corporation 
personally,  service  may  be  made  by  leaving  a  certified  copy 
of  such  process  at  the  usual  place  of  residence  of  such  person, 
or  as  in  the  last  preceding  section,  and  the  same  will  be 
deemed  complete  and  effectual.'^ 

71  Snyder,  5,506;  Wilson,  4.270;  Leroy  v.  Sidell,  62  Kan.  349,  63 
Kansas,  4,500    (1001),  identical.  Pac.    599;    St.   Louis   v.   Deford,   38 

72  Snyder,  5,607;  Wilson,  4,271.  Kan.  299,  16  Pac.  442;  Missouri  v. 
See,    on    this    subject,    Chicago    v.  Crowe,  9  Kan.  339. 

Groves,   7   Okla.   315,   54   Pac.   484;  73  SnydeY,  5,607;  Wilson,  4,272. 


49 


COMMENCEMENT    OF    THE    ACTION    TO   TRANSFER.     §§  54-56 


Sec.  54.     Service  on  insurance  company. 

Where  the  defendant  is  an  incorporated  insurance  company, 
and  the  action  is  brought  in  a  county  in  which  there  is  an 
agency  thereof,  the  service  may  be  upon  the  chief  officer  of 
such  agency.'^* 

Sec.  55.     Service  on  managing  agent. 

Where  the  defendant  is  a  foreign  corporation,  having  a 
managing  agent  in  this  State,  the  service  may  be  upon  such 
agent." 

Sec.  56.     Constructive  service  on  nonresident  by  publication. 

Service  may  be  made  by  publication  in  either  of  the  fol- 
lowing cases : 

(a)  In  cases  brought  under  the  statute  (Snyder,  5580, 
5581;  Wilson,  3920,  3921)  ,^«  where  any  or  all  of  the  defend- 


74  Snyder,  5,G08;  Wilson,  4,273; 
Kansas'  4,503  (1901),  identical; 
Nebraska,  1,075  (1907),  identical; 
German  v.  First  Nat'l,  etc.,  58  Kan. 
8C,  48  Pac.  592;  S.  W.  v.  Swanson, 
49  Kan.  449,  30  Pac.  405;  Bankers' 
Life  V.  Robins,  75  N.  W.  (Neb.) 
585. 

75  Snyder,  5,610;  Wilson,  4,274; 
Kansas,  4,504  ( 1901 )  ;  Federal  v. 
Reeves,  73  Kan.    101,  84   Pac.  560. 

76  Actions  for  the  following  causes 
must  be  brought  in  the  county  in 
which  the  subject  of  the  action  is 
situated,  except  as  provided  in  the 
next  paragraph:  First.  For  the 
recovery  of  real  property,  or  of  any 
estate  or  interest  therein,  or  the 
determination  in  any  form,  or  any 
such  right  or  interest.  Second. 
For  the  partition  of  real  property. 
Third.  For  the  sale  of  real  prop- 
erty, under  a  mortgage,  lien, 
or  other  incumbrance  or  charge. 
Fourth.      To    quiet   title,   to    estab- 


lish a  trust  in,  remove  a  cloud  on, 
set  aside  a  conveyance  of,  or  to 
enforce  or  set  aside  an  agreement 
to  convey  real   property. 

If  real  property,  the  subject  of  an 
action,  be  an  entire  tract,  and  situ- 
ated in  two  or  more  counties,  or  if 
it  consists  of  separate  tracts,  situ- 
ated  in   two  or   more   counties,   the 
action  may  be  brought  in  any  county 
in  which  any  tract,  or  part  thereof, 
is   situated,   unless   it   be   an  action 
to    recover    possession    thereof,    and 
if  the  property  be   an   entire   tract 
situated    in    two   or    more   counties, 
an     action     to     recover     possession 
thereof    may   be    brought   in    either 
of  such  counties;   but  if  it  consists 
of  separate  tracts,  in  different  coun- 
ties,  the   possession   of   such   tracts 
must     be     recovered     by     separate 
actions     brought     in     the     counties 
Avhere  they  are  situated.     An  action 
to   compel   the   specific   performance 
of  a  contract  to  sell  real  estate  may 


§  56  merwine's  trial  of  title  to  land.  50 

ants  reside  out  of  the  State,  or  where  the  plaintiff  with  due 
diligence  is  unable  to  make  service  of  summons  on  such 
defendant,  or  defendants,  within  the  State. 

(6)  In  actions  brought  to  establish  or  set  aside  a  will 
where  any  or  all  of  the  defendants  reside  out  of  the  State. 

(c)  In  actions  to  obtain  a  divorce  where  the  defendant 
resides  out  of  the  State. 

{d)  In  actions  brought  against  a  nonresident  of  the  State, 
or  a  foreign  corporation,  having  in  this  State  property  or 
debts  owing  them,  sought  to  be  taken  by  any  of  the  pro- 
visional remedies,  or  to  be  appropriated  in  any  way. 

(e)  In  actions  which  relate  to,  or  the  subject  of  which  is, 
real  or  personal  property  in  this  State,  where  any  defendant 
has  or  claims  a  lien  or  interest,  actual  or  contingent,  therein, 
or  the  relief  demanded  consists  wholly  or  partly  in  excluding 
him  from  any  interest  therein,  and  such  defendant  is  a  non- 
resident of  the  State  or  a  foreign  corporation. 

(/)  In  all  actions  where  the  defendant,  being  a  resident 
of  this  State,  has  departed  therefrom,  or  from  the  county  of 
his  residence,  with  intent  to  delay  or  defraud  his  creditors, 
or  to  avoid  the  service  of  summons,  or  keeps  himself  con- 
cealed therein  with  like  intent." 

Constructive  service  on  a  nonresident  may  be  had  in  an 
action  in  which  it  is  sought  to  trace  a  trust  fund  into  specific 
property  held  by  him  with  notice  of  the  trust.^* 

It  is  irregular  and  erroneous  to  join  claims,  in  which  con- 
structive service  may  be  had  with  those  where  such  service  is 
not  allowed.^^ 

be  brought  in  the  county  where  the  79  Zimmerman  v.  Barnes,  56  Kan. 

land  lies,  or  where   the  defendants,  419,  43  Pac.  764.     In  the  case  of  a 

or    any    of    them,    reside.      Snyder,  creditor   proceeding   by   publication, 

5,580  and  5,581;   Wilson,  3,920  and  the  fact  that  he  is   seeking  to  sub- 

3j921.  ject     property     of     the     defendant 

77  Snyder,  5,612;  Wilson,  4,276;  within  the  jurisdiction  must  affirm- 
Kansas,  5,206  (1901),  identical;  atively  appear.  Eepine  v.  McPher- 
Nebraska,    1,078     (1907),    identical.  son,  2  Kan.  340.     In  a  suit  against 

78  Reeves  v.  Pierce,  64  Kan.  502,  a  foreign  corporation,  where  its 
67  Pac.    1,108.  treasurer,   found   within   the   State, 


51 


COMMENCEMENT    OF   THE    ACTION   TO   TRANSFER. 


§56 


The  district  court  has  power  to  award  land  as  alimony  in 
a  divorce  proceeding  based  on  constructive  notice  to  the 
defendant,  where  the  plaintiff  alleges  sufficient  grounds  for 
divorce,  and  alimony,  in  the  petition,  and  asks  to  have  such 
land  appropriated  as  alimony,  and  where  the  publication 
notice  contains  a  particular  description  of  the  land  sought 
to  be  appropriated  and  the  nature  of  the  relief  demanded. 

An  action  for  divorce  must  be  brought  in  the  county  where 


is  garnishoed,  but  lie  has  no  funds 
of  the  corporation  in  liis  hands  liere, 
the  court  obtains  no  jurisdiction 
over  the  corporation  or  its  property 
in  another  State  on  service  against 
it  by  publication.  Wheat  v.  Rail- 
road Co.,  4  Kan.  370.  And,  where 
the  affidavit  for  publication  does 
not  state  directly,  inferentially,  or 
in  any  other  way,  that  the  action 
brought  is  one  of  those  mentioned 
in  Section  72  of  the  Civil  Code,  it 
is  fatally  defective,  and  service  by 
publication  cannot  be  obtained 
thereon.  Harris  v.  Claflin,  36  Kan. 
643,  13  Pac.  830.  In  Neal  v.  Rey- 
nolds, 38  Kan.  432,  16  Pac.  785, 
a  party  sought  to  rescind  a  contract 
for  the  exchange  of  real  estate  by 
an  action  properly  brought  in  the 
county  where  part  of  it  was  situ- 
ated, against  residents  of  another 
county,  where  they  were  summoned. 
After  appearance  of  the  defendants, 
the  plaintiff,  obtaining  leave  to 
amend,  added  another  cause  of 
action  for  damages  for  breach  of 
warranty  as  to  some  of  the  ex- 
changed lands,  thus  blending  a  local 
with  a  transitory  cause  of  action; 
and  it  was  held  that  the  added 
cause  was  properly  struck  out  on 
motion  of  the  defendants;  that  the 
plaintiff  should  be  confined  to  the 
cause  of  action  which  authorized 
service     of     summons     in     another 


county,  and  to  allow  him  to  do 
more  was  to  violate  the  statute 
relating  to  service,  take  an  undue 
advantage  of  the  defendants,  and 
impose  upon  the  court.  It  may  be 
difficult  to  reconcile  this  case  with 
Beebe  v.  Carter,  54  Kan.  261,  38 
Pac.  278,  but  the  latter  case  is 
distinguishable  from  the  one  now 
under  consideration,  for  in  that  the 
amendment  was  allowed  after  a  gen- 
eral appearance  had  been  entered 
by  the  defendant  constructively 
served,  and  one  of  the  defendants 
had  been  personally  served.  In  the 
present  case,  demands  only  personal 
in  their  nature  were  united  with 
those  wherein  constructive  service 
is  allowable,  and  then  such  service 
was  attempted  as  to  the  several  in- 
congruous claims-  but,  the  validity 
of  the  service  having  been  attacked 
by  motion,  we  cannot  disregard  the 
former  as  mere  surplusage,  because, 
on  appearance  of  the  defendants 
below,  they  could  not  answer  to  a 
part  of  the  petition  only,  but  must 
respond  to  everything  contained 
therein;  and  thus  they  would  be 
forced  to  litigate  personal  claims 
as  a  penalty  for  appearing  in  this 
jurisdiction  for  the  purpose  of 
settling  rights  to  property  situated 
here.  Zimmerman  v.  Barnes,  56 
Kan.  419,  43  Pac.  764. 


§56 


merwine's  trial  of  title  to  land. 


52 


the  plaintiff  resides,  and  when  rightfully  brought,  and 
alimony  is  asked  as  an  incident  of  the  divorce,  any  lands 
of  the  defendant  brought  within  the  control  of  the  court 
by  proper  averments  in  the  petition  and  notice  may  be 
awarded  as  alimony,  although  they  may  lie  in  a  county  of  the 
State  other  than  where  the  action  is  brought.^" 


8oWesnor  v.  O'Brien,  50  Kan. 
724,  44  Pac.  1,0'JO;  Rhodes  v. 
Rhodes,  11  N.  W.  (Neb.)  122.  It 
is  conceded  that  constructive  notice 
was  sufficient  to  authorize  a  divorce 
of  the  parties,  but  it  is  contended 
that  a  decree  terminating  the  mar- 
riage relation  was  the  full  extent 
of  the  jurisdiction  and  power  of  the 
court.  The  determination  of  the 
question  depends,  to  a  great  extent, 
upon  the  statutes  of  the  St;^te;  and 
that  the  State  has  full  power 
through  its  Legislature  and  courts, 
to  regulate  and  control  the  status 
of  its  citizens,  and  to  dispose  of  or 
to  control  real  property,  to  whom- 
soever it  may  belong,  Avithin  its 
limits,  will  hardly  be  denied.  It  is 
provided  that  service  may  be  made 
by  publication  "in  actions  to  obtain 
a  divorce,  where  the  defendant  re- 
sides out  of  the  State,"  and  "in 
actions  brought  against  a  non- 
resident of  the  State  .  .  .  hav- 
ing in  this  State  property  .  .  . 
sought  to  be  taken  by  any  of  the 
provisional  remedies  or  to  be  appro- 
priated in  any  way."  It  is  also 
authorized  where  the  action  relates 
to  real  or  personal  property  in  this 
State  in  which  a  nonresident  de- 
fendant has  or  claims  an  interest, 
or  where  the  relief  demanded  con- 
sists wholly  or  partly  in  excluding 
him  from  any  interest  therein. 
These  provisions,  if  valid,  afford 
authority  to  dissolve  the  marriage 
relation    upon    constructive    notice, 


and  also  to  appropriate  the  real 
property  of  the  nonresident  defend- 
ant. In  Dillon  v.  Heller,  39  Kan. 
59!),  18  Pac.  693,  it  is  held  that: 
"Kansas  is  supreme  except  so  far 
as  its  powers  and  authority  are  lim- 
ited by  the  Constitution  and  laws 
of  the  United  States.  And  within 
the  Constitution  and  laws  of  the 
United  States,  the  courts  of  Kansas 
may  have  all  the  jurisdiction  over 
all  persons  and  things  within  the 
State  which  the  Constitution  and 
laws  of  Kansas  may  give  to  them, 
and  the  mode  of  obtaining  this 
jurisdiction  may  be  prescribed 
wholly,  entirely  and  exclusively  by 
the  statutes  of  Kansas.  To  obtain 
jurisdiction  of  anything  within  the 
State  of  Kansas,  the  statutes  of 
Kansas  make  service  by  publication 
as  good  as  any  other  kind  of  service." 
The  same  view  has  been  expressed 
by  the  Supreme  Court  of  the  United 
States,  where  it  is  said:  "The 
State,  through  its  tribunals,  may 
subject  property  situated  within  its 
limits,  owned  by  nonresidents,  to 
the  payment  of  the  demands  of  its 
own  citizens  against  them,  and  the 
exercise  of  this  jurisdiction  in  no  re- 
spect infringes  upon  the  sovereignty 
of  the  State  where  the  owners  are 
domiciled.  Every  State  owes  pro- 
tection to  its  own  citizens,  and, 
when  nonresidents  deal  with  them, 
it  is  a  legitimate  and  just  exercise 
of  authority  to  hold  and  appro- 
priate any  property  owned  by  such 


53  COMMENCEMENT    OF   THE    ACTION   TO   TRANSFER.  §  57 

Where  a  resident  of  the  State  for  the  purpose  of  hindering 
and  delaying  creditors,  conveys  real  estate  to  a  nonresident 
of  the  State,  such  lands  may  be  subjected  to  the  payment  of 
the  debts  of  the  actual  owner,  and  constructive  service  may 
be  made  upon  the  holder  of  the  legal  title  residing  out  of  the 
State.^^ 

It  has  been  held  that  an  infant  of  whatever  age,  residing 
with  its  mother,  who  is  a  widow  and  resides  in  another  State, 
will  not  be  presumed  to  have  a  guardian  residing  in  this 
State;  and  in  a  suit  against  such  infant  for  the  purpose  of 
foreclosing  a  mortgage  on  real  estate,  situated  in  this  State, 
it  will  be  sufficient  to  state  in  the  affidavit  for  service  of 
notice  by  publication,  "that  the  said  *  *  *  are  non- 
residents of  the  State  of  Nebraska,  and  that  service  of  sum- 
mons cannot  be  made  upon  them  in  this  State.  "*- 

Sec.  57.     The  affidavit  required  for  service  hj  publication. 

Before  service  can  be  made  by  publication,  an  affidavit 
must  be  filed,  stating  that  the  plaintiff,  with  due  diligence,  is 
unable  to  make  service  of  the  summons  upon  the  defendant 
or  defendants  to  be  served  by  publication,  and  showing  that 
the  case  is  one  of  those  mentioned  in  the  preceding  section. 

When  such  affidavit  is  filed,  the  party  may  proceed  to  make 
service  by  publication.^^ 

nonresident  to  satisfy  the  claims  of  by  publication.  It  was,  therefore, 
its  citizens."  Pennoyer  v.  Xeff,  95  competent  for  the  Legislature  to 
U.  S.  714.  In  the  exercise  of  this  provide  for  the  granting  of  a  divorce 
power,  lands  of  nonresident  owners  upon  constructive  service,  and,  as 
are  appropriated  for  the  taxes  alimony  is  an  incident  of  divorce, 
assessed  against  them  upon  a  publi-  it  may  be  awarded  in  the  same  pro- 
cation  notice  only;  mortgage  and  ceeding,  if  it  is  within  the  power 
mechanics'  liens  are  foreclosed  of  the  court.  Wesner  v.  O'Brien, 
against  nonresident  defendants  where  56  Kan.  724,  44  Pac.  1,090. 
there  is  neither  personal  service  si  Keene  v.  Sellenback,  18  iST.  W. 
nor  appearance;  and  the  property  of  (Xeb. )    75. 

nonresident  defendants  lying  within  »-  Davis    v.    Huston,     16    X.     W. 

the    territorial    jurisdiction    of    the  (Xeb.)    820. 

court   is   subjected   to   the   payment  83  Snyder.    5,613;    Wilson,    4,277; 

of  claims  and  demands,  in  a  variety  Kansas,     4,507      (1901),     identical; 

of  ways,  without  other  service  than  Xebraska,    1,079     (1907),    identical. 


§57 


merwine's  trial  of  title  to  land. 


54 


It  must  be  kept  in  mind  that  compliance  with  the  statute 
as  to  ground  for  service  by  publication,  the  affidavit  there- 
for, and  the  publication  of  the  notice,  altogether  are 
required  to  give  the  court  power  to  enter  judgment.  If  any 
of  these  requirements  are  w^anting  the  court  will  acquire 
no  jurisdiction. 

Where  the  publication  alone  is  relied  on,  and  jurisdiction 
is  sought  to  be  obtained  of  a  defendant  in  an  action  by  pub- 
lication of  service,  the  affidavit  for  publication,  as  well  as  the 
publication  notice,  are  matters  jurisdictional,  and,  in  order  to 
obtain  jurisdiction  of  the  defendant  in  such  case,  both  the 
affidavit  for  publication,  and  the  publication  notice,  must 
comply  with  the  provisions  of  the  statute.** 


Where  tlie  affidavit  is  not  filod  the 
court  has  no  jurisdiction.  Osborne 
V.  Sclilecheuniaier,  G8  Kan.  421, 
75  Pac.  471.  A  judgment  rendered 
against  a  defendant  by  default 
upon  constructive  service  by  publi- 
cation, in  an  action  for  goods  sold 
and  delivered,  there  being  no  per- 
sonal serv.ice  land  no  appearance  of 
the  defendant,  is  absolutely  void, 
where,  at  the  time  of  the  commence- 
ment of  such  action  and  the  making 
of  such  publication,  the  defendant 
was  a  resident  of  the  territory, 
and  by  due  diligence,  summons  could 
have  been  personally  served  upon 
him.  Hockaday  v.  Jones,  8  Okla. 
156,  56  Pac.  1,054.  If  there  is  a 
total  want  of  evidence  upon  a  vital 
point  in  the  affidavit  for  publica- 
tion, the  court  acquires  no  juris- 
diction by  publication  of  the 
summons;  but  where  there  is  not 
an  entire  omission  to  state  some 
material  fact,  but  it  is  inferentially 
or  insufficiently  set  forth,  the  pro- 
ceedings are  merely  voidable;  and 
where  the  affidavit  f^or  publication 
does  not  state  directly,  inferentially, 
or  in  any  other  way,  that  the  action 


brought  is  one  of  those  mentioned 
in  Section  72  of  the  Civil  Code,  the 
affidavit  is  fatally  defective,  and 
service  by  publication  cannot  be 
obtained  thereon.  Harris  v.  Claflin, 
36  Kan.  543,  13  Pac.  830;  Shields 
v.  Miller,  9  Kan.  390;  but  see 
Dietrich  v.  Lang,  11  Kan.  636; 
Grouch  V.  Martin,  27  Pac.  (Kan.) 
985.  In  an  affidavit  for  publica- 
tion, if  there  is  a  total  want  of 
evidence  vipon  a  vital  point,  the 
court  will  acquire  no  jurisdiction 
by  publication  of  the  notice;  but 
where  there  is  not  an  entire  omis- 
sion to  state  a  material  fact,  or  it 
is  inferentially  or  insufficiently  set 
forth,  the  proceedings  are  merely 
voidable.  Britton  v.  Larson,  37 
X.  W.  681.  An  affidavit  containing 
no  venue  of  the  action,  nor  the 
name  of  the  officer  taking  it,  is  void. 
Albers  v.  Kozeluh,  97  N.  W.  (Neb.) 
046. 

84-Cordray  v.  Cordray,  19  Okla. 
36,  91  Pac.  781.  This  statute  was 
adopted  in  this  territory  from  the 
State  of  Kansas,  and  has  been 
passed  upon  repeatedly  by  that 
State.      Among    the    early    cases    is 


55 


COMMENCEMENT    OP   THE    ACTION   TO   TRANSFER. 


§57 


The  allegations  of  the   affidavit  must  be  direct  and  must 
set  forth  the  facts  required  by  statute.     It  is  not  sufficient 


the  case  of  Shields  v.  Miller,  9  Kan. 
390,  which   was   a   foreclosure   case. 
The  affidavit  in  that  case  was  some- 
what   of    the    same    form   and    sub- 
stance as  the   one   at  bar,   and  the 
court     in     passing    upon     the     case 
makes    the    statement,    that,     from 
anything  that  appeared  in  the  affi- 
davit, the  defendant  may  have  been 
in  the  county  where  the  action  was 
brought,  or   even  upon  the  land   in 
controversy  when   the   affidavit  was 
filed,    and,    therefore,    might   easily 
have  been  served  with  summons  per- 
sonally.  The  Supreme  Court  further 
says    that:      "The    affidavit    is    the 
foundation  upon  which  jurisdiction 
is  obtained.     The   plaintiff   has   no 
power  or  authority  to  obtain  service 
by    publication    until    after    he    has 
filed  the  proper  affidavit.     Without 
the  affidavit,   the  attemptpd   service 
by    publication    is    a    nullity,    and 
without    valid    service    every    subse- 
quent     proceeding,      including     the 
judgment,    the    execution,    order    of 
sale  and  deed,   must   necessarily  be 
void."      Another    case   bearing   upon 
the  same  subject  is  Crouch  v.  Mar- 
tin, 47  Kan.  313,  27  Pac.  985.     In 
this  case,  the  affidavit   for   publica- 
tion failed  to  state  that  the  action 
was  one  of  those  mentioned   in  the 
"preceding    section."      Also    in    the 
case  of  Adams  v.  Baldwin,  49  Kan. 
781,  31  Pac.  681,  the  court  held  the 
same   doctrine.     Again,   in  the  case 
of  Patterson  v.   Patterson,  57   Kan. 
277,    46    Pac.    304,   being   a    divorce 
case,    the    court    says    that    the   affi- 
davit   would    be    insufficient    where 
there    was    an    entire    want   of    any 
showing   that   the   case   was   one   of 
thoje   mentioned   in   tlie    "preceding 


section,"    which    is    Section    78    of 
our    code.      That   "the   filing   of    an 
affidavit      complying      substantially 
with  the  terms  of  said  section  is  a 
condition  precedent  to  the  obtaining 
of   service  by  publication."     Again, 
in  the  case  of   Shields  v.  Miller,  9 
Kan.  390,  and  Claypoole  v.  Houston, 
12  Kan.  324,  and  Harris  v.  Claflin, 
36  Kan.  543,  13  Pac.  830,  the  court 
deals    with    this    subject,    following 
the    former    decision.      In    the    last 
cited  case  the  affidavit  was  held  to 
be  void.     In  Liebernian  v.  Douglass, 
62  Kan.  786,  64  Pac.  591,  the  court 
holds   that    "the   allegations   in  the 
affidavit  that  this  is  one  of  the  cases 
mentioned  in  Section  72  of  the  Code 
of   Civil    Procedure   in   the  laws   of 
the  State  of  Kansas,  is  not  a  state- 
ment of  facts  as  is  required  in  the 
affidavit,   but  a   mere  conclusion   of 
law,  and  renders  the  affidavit  wholly 
insufficient   under    the   statute   as   a 
basis  upon  which  constructive  serv- 
ice    can     properly    be    predicated." 
The   court   holds   in   this   case   that 
the  defect   in  the  affidavit  is  fatal, 
and    that    the     sheriff's     deed    and 
judgment   were    A'oid    by    reason    of 
such    judgment.      The    affidavit    in 
this    case    should    have    stated   that 
this    was    an     action    for     divorce. 
This  allegation  is  entirely  omitted, 
and,   under   the   numerous   decisions 
of    the   Supreme    Court   of   Kansas, 
such  allegation  is  held  to  be  neces- 
sary,   and   a  want   of   it   is   such   a 
defect   that  no  valid  judgment   can 
be    rendered.      Numerous    cases    in 
other   States   upon   similar   statutes 
have  been  decided,  and  the  holdings 
are    uniform    with    those    from    the 
State    of    Kansas.      In   the    case    of 


§  58  merwine's  trial  of  title  to  land.  56 

for  the  attorney  to  verify  statutory  groiiiids  upon  information 
and  belief.*^ 

Again,  where  publication  service  is  relied  on  solely,  and  it 
is  alleged  in  the  affidavit  therefor,  that,  Avith  the  exercise  of 
due  diligence  the  plaintiff  is  unable  to  procure  the  service 
of  summons  upon  the  defendant  within  the  State,  the  facts 
necessary  to  show  that  due  diligence  was  used  to  obtain 
personal  service  should  be  stated,  and  where  judgment  is 
rendered  against  a  foreign  corporation  without  such  require- 
ments being  complied  with,  it  is  void.^'' 

Sec.  58.  Application  to  set  aside  constructive  service  and 
proceedings  under  it  not  a  collateral  attack,  when. 
The  statute  requiring  an  affidavit  to  be  filed  showing  the 
statutory  grounds  before  a  party  may  proceed  to  make 
service  by  publication,  must  be  complied  with.  It  is  not 
sufficient  to  aver  in  the  affidavit  that  the  case  is  one  within 
the  provisions  where  constructive  service  is  permitted,  for 
this  is  but   a  conclusion  of  law.     Such  statement  is  wholly 

Oalpin   V.   Page,    IS    Wall.    (U.   S.)  v.   Richardson,   26   Cal.   149;   P.raley 

350,     the     Supreme     Court     of     tlie  v.    Seaman,    30    Cal.    610;    Kahn    v. 

United  States  hold  that  ''where  the  :Maliai,    115   Cal.  689,  47   Pac.   678; 

record   states   facts   showing  that  a  Little    v.     Chambers,    27    la.    522; 

defendant  is  without  the  territorial  Tliompson  v.   Circuit,  54  Mich.  236, 

limits    of    the    court,    and    that    he  19  N.  W.  9G7;  Alderson  v.  Marshall' 

never   appeared   in   the  action,    pre-  7     Mont.     288,     16    Pac.    576.       An 

sumption    of    jurisdiction    over    his  alTidavit  for  service  by  publication, 

person    ceases,    and    Ihe    burden    of  made    by    the    authorized    agent    of 

establishing  the  jurisdiction  is  upon  the  plaintiff,  which  is  otherwise  cor- 

the   party   who   invokes   the   benefit  rect,     but    which     closes    with     the 

of    protection    of    the    judgment    or  words,    "to   the   best   of   his   knowl- 

decree."      Cordray    v.    Cordray,    19  edge,    information   and   belief,"   and 

Okla.   3G,   91    Pac.  781.  thereby  qualifies  the   prior   declara- 

85  Romig  V.  Gilette,  10  Okla.  186,  tions  contained  therein,  is  defective 
62   Pac.  805,   187   S.  W.   111.  and  insufficient,  but  not  void:    and 

86  Nicoll  v.  Midland,  21  Okla.  591,  the  plaintifi",  after  judgment,  is 
96  Pac.  744;  McDonald  v.  Cooper,  entitled,  with  leave  of  the  trial 
32  Fed.  Eep.  745;  Coalton  v.  Coal-  court,  to  make  the  affidavit  positive 
ton,  85  X.  Y.  313;  McCracken  v.  and  sufficient  by  amendment.  Har- 
Flanagan,  127  X.  Y.  493,  28  N.  E.  rison  v.  Beard,  30  Kan.  532,  2  Pac. 
385,    24    Am.    St.    481;    Pdchardson  632. 


57 


COMMENCEMENT    OF    THE   ACTION   TO   TRANSFER. 


§58 


insufficient  and  any  attempted  service  by  publication  under 
such  affidavit  will  render  all  subsequent  proceedings  there- 
under a  nullity.  The  law  in  respect  to  the  statements  is 
explicit  and  peremptory;  and  there  is  no  way  of  evading  it. 
Where  the  affidavit  for  publication  is  wholly  insufficient  in 
law,  and  application  is  made  to  set  aside  the  constructive 
service  and  subsequent  proceedings  based  thereon  in  the  same 
case  and  considered  without  objection,  it  was  held  that  such 
application  and  proceedings  constituted  a  direct  and  not  a 
collateral  attack  upon  the  constructive  service  and  subsequent 
proceedings.*^ 


8"  Lieberman  v.  Douglass,  62  Kan. 
78G,  G4  Pac.  5'JO.  The  allegation 
in  the  affidavit  that  this  is  one  of 
the  cases  mentioned  in  Section  72 
of  tlie  Code  of  Civil  Procedure  in 
the  laws  of  the  State  of  Kansas, 
is  not  such  a  statement  of  facts  as 
is  required  in  the  affidavit,  but  a 
mere  conclusion  of  law,  and  renders 
the  affidavit  wholly  insufficient 
under  the  statute  as  a  basis  upon 
which  constructive  service  can 
properly  be  predicated.  This  defect 
in  the  affidavit,  we  tliink,  is  fatal. 
As  was  said  by  tliis  court  in  the 
case  of  Shields  v.  ililler,  9  Kan. 
390,  the  law  is  explicit  and  per- 
emptory and  there  is  no  way  of 
evading  it.  The  affidavit  is  the 
foundation  upon  which  jurisdiction 
is  obtained.  The  plaintiff  has  no 
authority  or  power  to  obtain  service 
Ly  publication  until  after  he  has 
filed  the  proper  affidavit.  Without 
the  affidavit,  the  attempted  service 
is  a  nullity.  And  without  a  valid 
service  every  subsequent  proceeding, 
including  the  judgment,  the  execu- 
tion or  order  of  sale,  the  sale  and 
the  deed,  must  necessarily  be  void. 
The  Court  of  Appeals  in  its  con- 
sideration of  this  case  arrived  at 
the   same  conclusion,   but   proceeded 


with  a  further  consideration  of  the 
case  upon  the  assumption  that  the 
attack  made  upon  the  service  was 
in  the  nature  of  a  collateral  and 
not  a  direct  attack.  With  this  con- 
clusion we  do  not  agree.  The  final 
judgment  in  the  case  was  rendered 
on  the  3d  day  of  January,  1895. 
This  judgment  was  rendered  in 
favor  of  the  defendant,  Douglass. 
It  was  expressly  based  upon  this 
constructive  service.  The  motion 
of  Lieberman  to  set  aside  this  serv- 
ice and  the  proceedings  based 
thereon  was  filed  in  this  case  on 
the  21st  day  of  February,  1895, 
at  the  same  term  of  court  at  which 
this  judgment  was  rendered.  At 
the  hearing  of  this  motion  Douglass 
appeared,  and,  without  objection, 
went  to  trial  upon  the  merits  of 
the  motion.  It  is  clear  that  such 
proceeding  constitutes  a  direct  and 
not  a  collateral  attack  upon  the 
constructive  service  and  subsequent 
proceedings  based  thereon,  and 
whether  such  proceedings  and  serv- 
ice were  absolutely  void  or  only 
voidable  is  not  material.  Commis- 
sioners v.  Lawrence,  29  Kan.  158. 
In  People  v.  Green,  74  Cal.  400, 
16  Pac.  197,  the  court  held:  "A 
motion  to   set  aside   a  judgment  is 


59  merwine's  trial  of  title  to  land.  58 

It  has  been  held  that  where  an  affidavit  has  been  filed, 
notice  given  by  publication  and  approved  by  the  court  as 
required  by  statute,  jurisdiction  is  conferred  upon  the  court 
to  hear  and  determine  the  action  in  which  such  service  was 
had,  and  a  judgment  rendered  therein  is  valid  and  unim- 
peachable unless  assailed  for  cause  within  the  time  pre- 
scribed ])y  statute,  even  though  the  affidavit  was  true,  the 
defendant  was  ignorant  of  the  pendency  of  the  action,  and 
made  no  appearance  therein.**^ 

The  court  will,  on  motion  filed  in  due  time,  set  aside  a 
service  by  publication,  based  on  an  affidavit  which  contains 
no  reference  to  the  defendant  attempted  to  be  served.*® 

Sec.  59.     The  affidavit  for  service  by  publication  may  be  cor- 
rected by  amendment,  when. 

It  has  been  held  that  where  an  affidavit  for  publication 
either  inferentially  or  insufficiently  sets  forth  a  material  fact 
which  should  be  expressly  stated,  the  affidavit  being  other- 
wise good,  will  be  held  to  be  merely  voidable ;  and,  if  the 
fact  inferentially  or  insufficiently  stated,  was  in  existence  at 
the  time  of  the  commencement  of  the  action,  the  trial  court, 
even  after  judgment,  may  allow  the  affidavit  to  be  amended 
concerning  the  matters  so  inferentially  or  insufficiently  stated, 

a  direct  and  not  a  collateral  attack  materially    irregular    and    defective, 

thereon."     In  People  v.  Mullan,   65  provided  there  has  been  no  waiver 

Cal.   396,  4   Pac.   348,   the   Supreme  of    such    defects    by    appearance    or 

Court  of  California  held:    "A  judg-  otherwise."      Lieberman  v.  Douglass, 

ment    following    a    service    by    sum-  62  Kan.  786,  64  Pac.  590;   see,  also, 

mons  purporting  to  be  by  publication,  Simcock    v.     Bank,    14    Kan.    529; 

but   which   was   made   without   afR-  Leavenworth  v.   Stone,   60  Kan.   57, 

davit    or    order,    is    void;     and    a  55  Pac.  346. 

motion  to  set  aside  the  judgment  is  ss  Davis   v.    Vinson,    76    Kan.    27, 

a  direct  and  not  a  collateral  attack."  90    Pac.    766;     see,    also,    Ogden    v. 

Mr.    Black,    in    his    work   on    Judg-  Walters,    12   Kan.   282;    Larimer   v. 

ments,    Sec.    324,    says:      "It   is,   in  Knoyle,  43  Kan.  346,  23  Pac.   487; 

general,     good    ground    for     setting  Hammond   v.    Davenport,    16    0.    S. 

aside    a    judgment    that    ther     was  177. 

no  service  of   process  upon   the   de-  89  Rawson   v.    Sherwood,   59   Kan. 

fendant,    or    that    the    service    was  776,   53   Pac.   69. 


59 


COMMENCEMENT    OF   THE    ACTION   TO   TRANSFER. 


§59 


and  the   affidavit  so   amended  will  relate   back  to   the   com- 
mencement of  the  action.^" 

But,  in  order  that  the  affidavit  may  be  amended,  the  facts 
authorizing  the  amendment  must  be  stated  so  as  to  make 
the  affidavit  come  within  the  terms  of  the  statute.  The 
courts  have  qualified  the  right  to  amend  by  holding  that 
affidavits  for  service  by  publication  are  amendable  as  to 
some  defects.  The  affidavit  that  fails  to  state  directly,  or 
inferentially,  or  in  any  other  way,  any  matters  required  by 
the  statute  to  be  stated  therein,  is  voidable,  and  constructive 
service  by  publication  cannot  be  obtained  thereunder.^'  But 
where  the  jurisdictional  facts  necessary  to  warrant  service 
by  publication  were  in  existence  at  the  time  of  the  com- 
mencement of  the  action,  and  the  affidavit  for  publication  is 


soling  V.  Fife,  45  Kan.  27i,  25 
Pac.  594;  Raymond  v.  Nix,  5  Okla. 
656,  49  Pac.  1,110;  Pteister  v.  Laud, 
14  Okla.  34,  76  Pac.  156;  Weaver 
V.  Lockwood,  2  Kan.  App.  62,  43 
Pac.  311;  Harrison  v.  Beard,  30 
Kan.  532,  2  Pac.  632;  Pierce  v. 
Butters,  21  Kan.  124;  Wilkins  v. 
Tourtellott,  28  Kan.  833.  The  affi- 
davit for  publication  should  have 
stated  that  the  case  commenced  in 
the  district  court  was  one  of  those 
mentioned  in  Section  72  of  the  Civil 
Code.  This  rule  is,  if  there  is  a 
total  want  of  evidence  upon  a  vital 
point  in  the  affidavit,  the  court 
acquires  no  jurisdiction  bj'  publica- 
tion of  the  summons,  but  where 
there  is  not  an  entire  omission  to 
state  some  material  fact,  but  it  is 
inferentially  or  insufficiently  set 
forth,  the  proceedings  are  merely 
voidable.  Harris  v.  Claflin,  36  Kan. 
543,  13  Pac.  830.  The  affidavit  for 
publication  stated  that  Mrs.  M.  A. 
Hays,  the  defendant,  was  a  non- 
resident of  the  State  of  Kansas; 
that  service  of   summons  could  not 


be  made  upon  her  wit'iin  the  State; 
that  the  action  was  brought  for  the 
purpose  of  recovering  from  her  the 
sum  of  one  hundred  dollars  due  to 
the  plaintiff;  and  also  set  forth  a 
full  description  of  the  real  estate 
owned  by  her  in  the  city  of  Wyan- 
dotte (now  Kansas  City).  This  was 
the  property  that  was  attached,  and 
which  was  subsequently  sold  to  pay 
the  judgment.  The  fair  inference 
from  the  affidavit  is  that  the  real 
estate  described  was  sought  to  be 
taken  or  appropriated  for  the  deb:; 
owing  by  Mrs.  Hays;  at  least,  we 
do  not  think  the  omission  in  the 
affidavit  so  vital,  in  view  of  what 
the  affidavit  did  contain,  as  to 
render  the  proceedings  void.  Long 
V.  Fife,  45  Kan.  271,  25  Pac.  595. 
91  Ballew  v.  Young,  24  Okla.  182, 
103  Pac.  623;  Leavenworth  v. 
Stone,  60  Kan.  57,  55  Pac.  346; 
Oarrett  v.  Struble,  57  Kan.  508, 
46  Pac.  943;  Long  v.  Fife,  45  Kan. 
271,  25  Pac.  594,  23  Am.  St.  Rep. 
274. 


§  60  merwine's  trial  of  title  to  land.  60 

defective  only  in  that  it  states  inferentially  a  matter  required 
to  be  alleged  therein,  it  is  amendable,  even  after  judgment, 
but  where  there  is  a  total  want  of  averment  in  the  affidavit 
of  some  material  fact,  it  is  void.**- 

Sec.  60.     Service  by  publication — When  and  how  made. 

The  publication  must  be  made  three  consecutive  weeks  in 
some  newspaper  printed  in  the  county  where  the  petition  is 
filed,  if  there  be  any  printed  in  such  county;  and  if  there  be 
not,  in  some  newspaper  printed  in  this  State,  of  general 
circulation  in  that  county.  It  must  state  the  court  in  which 
the  petition  is  filed,  the  names  of  the  parties,  and  must  notify 
the  defendants  thus  to  be  served  that  he,  or  they,  have  been 
sued  and  must  answer  the  petition  filed  by  the  plaintiff  on 
or  before  a  time  to  be  stated  (which  must  not  be  less  than 
forty-one  days  from  the  date  of  the  first  publication),  or  the 
petition  will  be  taken  as  true,  and  judgment,  the  nature  of 
which  must  be  stated,  will  be  rendered  accordingly.^' 

As  the  affidavit  for  service  by  publication  must  be  accord- 
ing to  the  terms  of  the  statute,  to  give  the  court  jurisdiction 
for  constructive  service  of  the  defendant,  so  the  notice  to  be 
published  must  be  within  the  terms  of  the  statute  in  order 
to  give  the  court  power  to  order  a  sale,  or  enter  any  decree 
in  the  case  against  the  defendant  to  be  served  by  pub- 
lication."* 

92  Ballew  V.  Youn'g,  24  Okla.  182,  levied  upon,  a  publication  notice 
103  Pac.  623;  Foreman  v.  Carter,  which  fails  to  describe  the  land 
'9  Kan.  674;  Pierce  v.  Butters,  21  attached,  and  fails  to  state  infer- 
Kan.  124;  Harrison  v.  Beard,  30  entially,  or  in  any  other  manner, 
Kan.  532,  2  Pac.  G32;  Harris  v.  the  nature  of  the  judgment  which 
Claflin,  36  Kan.  543,  13  Pac.  830;  will  be  taken,  is  fatally  defective. 
Wilkins  v.  Tourtellott,  28  Kan.  589.  Ballew  v.  Young,  24  Okla.  182,  103 

93  Snyder,  5,614;  Wilson,  4,278;  Pac.  €24.  In  obtaining  service  by 
Kansas,  4,508  (1901),  identical;  publication,  if  there  is  a  total  fail- 
OSI^ebraska,    1,080     (1907),    identical.  ure    to     state     in     the    notice     any 

94  Cordray  v.  Cordray,  19  .Okla.  material  matter  required  by  the 
36,  91  Pac.  781.  In  an  action  for  statute,  the  service  is  void  and  sub- 
attachment  against  a  nonresident  ject  to  collateral  attack;  but  where 
defendant,     whose     land    has     been  there  is  not  such  an  entire  omission 


61  COMMENCEMENT   OF    THE    ACTION   TO   TRANSFER.  §  60 

Neither  courts,  nor  clerks,  have  any  power  or  discretion 
with  respect  to  the  time  in  which  the  notice  by  publication 
shall  be  published,  and  what  it  shall  contain,  nor  on  what 
date  the  defendant  shall  be  notified  that  he  is  required  to 
answer."^ 

The  publication  of  the  notice  for  the  times  required  by 
the  statute,  and  on  additional  dates,  will  not  invalidate  the 
notice. ^*^  The  notice  for  publication  need  not  state  the  names 
of  any  of  the  defendants  in  the  case  except  the  one  upon 
whom  constructive  service  is  being  made;  and  the  notice  is 
held  to  be  sufficient  where  it  advises  such  defendant  of  the 
nature  and  character  of  the  action  brought  against  him,  and 
of  his  interests  which  are  sought  to  be  affected  by  the 
action/"' 

It  was  held  that  service  of  summons  by  publication  upon 
Emma  H.  Morris  is  not  a  good  service  on  Emma  11.  Durham, 
a  married  woman,  who  had  borne  the  name  of  Durham  for 
nearly  twenty  years,  though  her  maiden  name  was  Emma  H. 
Morris;  and  such  an  attempted  service  in  an  action  of  par- 
tition, under  which  it  is  attempted  to  sell  her  interest  in 
lands  belonging  to  the  estate  of  her  deceased  father,  should 
be  set  aside  on  her  motion.^^ 


of     a     material     matter     from     the  of   a   court   of   general   jurisdiction, 

notice,    but    it    is    inferentially    or  said  notice  will   be   presumed  to  be 

insufficiently   set   forth   therein,  the  sufficient    under    the    statute    until 

service  is  merely  voidable,  and  can  the    contrary    is    shown.       Core    v. 

be   successfully   attacked  only   on  a  Smith,  23   Okla.   909,  102  Pac.   114. 

direct   proceeding.      In   a    collateral  95  Calkins    v.    Miller,    75    X.    W. 

attack    upon    a    judgment    of    fore-  (Xeb.)     1,108. 

closure,   where   the    record   discloses  96  Taylor     v.     Coots,     48     N.    W. 

that  an  affidavit  for  publication  for  (Xeb.)      64;     Fouts    v.     Mann,     18 

the  nonresident  defendant  assailing  X.  W.   (Xeb.)   64.     The  time  for  the 

said   judgment   was   made,   and,   be-  publication  is  counted  by  including 

cause   destroyed,  was  not  produced,  the  first  day  and  excluding  the  last, 

but    which    was    approved    by    the  Beckwith  v.  Douglass,  25  Kan.  159. 

court,  which  upon  it  rendered  said  9-  Head    v.    Daniels,    38    Kan.    1, 

decree    of    foreclosure,    as    all    pre-  15  Pac.  911. 

sumptions  are  in  favor  of  the  valid-  98  Morris  v.  Tracey,  58  Kan.   137, 

ity   of   the   orders    and   proceedings  48  Pac.  571. 


§§  61-63  merwine's  trial  of  title  to  land.  62 

Sec.  61.  Service  by  publication  complete,  when — Proof  of 
publication. 
Service  by  publication  is  complete  when  it  has  been  made 
in  the  manner  and  for  the  time  prescribed  in  the  statute 
set  forth  in  the  preceding  section;  and  such  service  must  be 
proved  by  the  affidavit  of  the  printer;  or  his  foreman  or 
principal  clerk,  or  other  person  knowing  the  same.  No  judg- 
ment by  default  can  be  entered  on  such  service  until  proof 
thereof  be  made,  and  approved  by  the  court,  and  filed.**^ 

Sec.  62.     The  affidavit  in  proof  of  publication  of  notice  may 
be  amended. 

If  service  has  been  made  by  publication,  and  the  affidavit 
filed  by  the  printer  in  proof  thereof,  does  not  show  that  the 
notice  was  printed  the  required  number  of  times,  the  affidavit 
may  be  amended  so  as  to  speak  the  truth.  If  the  judgment 
on  such  notice  is  assailed  on  account  of  such  insufficient 
publication,  the  court  may  examine  the  copies  of  the  news- 
paper in  which  the  same  was  printed,  and  receive  the  evi- 
dence of  the  publishers,  and  other  parties,  to  prove  that 
the  publication  was  had  for  a  sufficient  length  of  time  to 
comply  with  the  provisions  of  the  statute.^ 

Sec.  63.  When  personal  service  of  summons  may  be  made 
out  of  the  State. 
In  all  cases  where  service  may  be  made  by  publication, 
personal  service  of  summons  may  be  made  out  of  the  State 
by  the  sheriff  of  the  county  in  which  such  service  may  be 
made.  Such  summons  must  be  issued  by  the  clerk  under  the 
seal  of  the  court,  and  directed  to  the  defendant,  or  defend- 
ants,  to   be   served,   and  must  notify  him   or  them  that   he, 

99  Snyder,    5.615;    Wilson,    4.279;  i  Eobinson  v.   Hall,   .33   Kan.   139, 

Kansas,     4,509      (1901),     identical;  5  Pac.   763;    Hackett  v.  Lnthrop,  36 

Nebraska,     1,081      (3907),     similar;  Kan.  661,  14  Pac.  220;   Williams  v. 

Taylor  v.   Coots,   48   N.   W.    (Neb.)  Morehead,  33  Kan.  009,  7  Pac.  226; 

964;    Britton  v.   Larson,   37   N.  W.  Hammerslough  v.  Hackett,  30  Kan. 

(Neb.)    681.  57,  1  Pac.  41. 


63  COMMENCEMENT    OF   THE    ACTION   TO   TRANSFER.  §  63 

or  they,  have  been  sued  by  the  plaintiff,  or  plaintiffs,  naming 
him  or  them,  and  requiring  him  or  them  to  answer  the  peti- 
tion filed  by  the  plaintiff,  or  plaintiffs,  in  the  clerk's  office 
of  the  court,  which  must  be  named,  within  sixty  days  from 
the  day  of  service,  or  such  petition  will  be  taken  as  true 
and  judgment  rendered  accordingly.  Such  service  may  be 
proved  by  the  affidavit  of  the  person  making  the  same,  before 
a  clerk  of  a  court  of  record,  or  other  officer  holding  the 
seal  thereof,  or  before  some  commissioner  appointed  by  the 
governor  of  this  State,  under  an  act  providing  for  the  ap- 
pointment of  commissioners  to  take  depositions,  etc. :  Pro- 
vided, that  such  service  when  made  and  proved  as  aforesaid, 
shall  have  the  same  force  and  effect  as  service  obtained  by 
publication,  and  no  other  or  greater  force  or  effect.^ 

A  personal  service  of  a  summons  may  be  made  outside  of 
the  State,  but  an  affidavit  must  be  filed  in  the  case,  stating 
that  the  plaintiff,  with  due  diligence  is  unable  to  make  service 
on  the  defendant  to  be  served,  and  that  the  case  is  one  of 
those  in  which  summons  may  be  had  by  publication.^ 

The  statute  authorizes  the  service  of  summons  to  be  made 
by  the  sheriff,  and  his  deputy  may  not  make  the  service,*  or 
any  other  person  acting  as  substitute  for  the  sheriff.^  But 
the  service  is  a  nullity  if  no  proof  is  made  by  the  affidavit 
required  by  the  statute.^ 

No  copy  of  the  petition  is  required  to  be  served  with  the 
summons ;  ^  under  section  one,  chapter  thirteen  of  the  laws 
of  eighteen  hundred  and  seventy-one.     A  nonresident  of  the 


2  Snyder.    5,616;     Wilson,    4,280;  borne    v.    Schlechenmaier,    68    Kan. 

Kansas,     4,510      (1901),     identical;  421,  75  Pac.  474. 

Nebraska,  1,082   (1907),  similar.     A  3  Adams  v.  Baldwin,  49  Kan.  781, 

judgment  rendered  in  an  action  on  31    Pac.    681;     see,    also,    Rowe    v. 

service   by   publication,   or   personal  Griffith,   '68   N.   W.    (Neb.)    20. 

service  outside   of   the   State,  where  *  Kincaid   v.    Froy,   49    Kan.   766, 

there  had  been  no  affidavit  for  pub-  31  Pac.  704. 

lication   filed,    is   void,   and    will   be  s  Flint  v.   Noyes,  27   Kan.   351. 

set   aside   upon    proper   and    timely  e  Boden  v.  Maier,  98  N.  W.  (Neb.) 

application   by   the   defendant.     Os-  701. 

7  Case  V.  Barthlow,  21   Kan.  223. 


§  64  merwine's  trial  of  title  to  land,  64 

State  may  waive  summons  by  the  indorsement  of  his  name 
on  the  back  thereof.* 

Sec.  64.  Judgment  on  service  by  publication  may  be  opened 
up,  how — Procedure  as  to — Good  faith  purchasers. 
A  party  against  whom  a  judgment  or  order  has  been  ren- 
dered without  other  service  than  by  publication  in  a  news- 
paper, may,  at  any  time  within  three  years  after  the  date 
of  the  judgment  or  order,  have  the  same  opened,  and  be  let 
in  to  defend.  Before  a  judgment  or  order  can  be  opened,  the 
applicant  is  required  to  give  notice  to  the  adverse  party  of 
his  intention  to  make  such  an  application,  and  is  required 
to  file  a  full  answer  to  the  petition  and  pay  all  costs,  if 
the  court  require  them  to  be  paid,  and  make  it  appear  to  the 
satisfaction  of  the  court,  by  affidavit,  that  during  the 
pendency  of  the  action,  he  had  no  actual  notice  thereof,  in 
time  to  appear  in  court  and  make  his  defense ;  but  the  title 
of  any  property,  the  subject  of  the  judgment  or  order  sought 
to  be  opened,  which,  by  it,  or  in  consequence  of  it,  shall  have 
passed  to  a  purchaser  in  good  faith,  shall  not  be  affected 
by  any  proceedings  under  this  section,  nor  shall  they  effect 
the  title  of  any  property  sold  before  judgment  under  an 
attachment.  The  adverse  party,  on  the  hearing  of  the 
application  to  open  the  judgment  or  order,  as  provided  by 
this  section,  will  be  allowed  to  present  counter-affidavits  to 
show  that  during  the  pendency  of  the  action,  the  applicant 
had  notice  thereof  in  time  to  appear  in  court  and  make  his 
defense.® 

8  Chenney  v.   Harding,   32   N.   W.       Kan.    774,    74   Pac.   240;    Lockey  v. 
(Neb.)    64.  Wilson,  63   Kan.  881,   64  Pac.  978; 

9  Snyder,  5,617;  Wilson,  4,281;  Hale  v.  Hoagland,  62  Kan.  57,  61 
Kansas,  4,511  (1901),  identical;  Pac.  314;  Townsend  v.  Burr,  9  Kan. 
Brown  v.  Massey,  13  Okla.  670,  76  App.  810,  60  Pac.  477;  Atchison  v. 
Pac.  266;  Bridge  v.  Street,  9  Okla.  Means,  61  Kan.  857,  58  Pac.  989; 
422,  60  Pac.  221;  Provins  v.  Love,  Quinton  v.  Derein,  59  Kan.  772,  51 
6  Okla.  94,  50  Pac.  581;  Williams  Pac.  898;  Kelly  v.  McBlain,  6  Kan. 
V.  Board,  74  Kan.  693,  88  Pac.  70;  App.  523,  50  Pac.  063;  Durham  v. 
McKee  v.  Covalt,  71  Kan.  772,  81  Moore,  48  Kan.  135,  29  Pac.  472. 
Pac.    475;     Rendell    v.    Barker,    67 


65  COMMENCEMENT   OF   THE    ACTION   TO   TRANSFER.  §  §  65,  66 

It  was  held  by  Judge  Brewer  of  the  Supreme  Court  of 
Kansas,  that  when  a  nonresident  seeks  to  open  up  a  judg- 
ment and  be  let  in  to  defend  under  the  provisions  of  the 
statute  in  question,  three  things  are  imperatively  required 
by  the  express  terms  of  the  statute: 

(a)    That  the  applicant  give  notice. 

(6)  That  he  file  a  full  answer,  and,  if  required  by  the 
court,  pay  all  costs. 

(c)  That  he  make  it  appear  to  the  satisfaction  of  the 
court,  by  affidavit,  that  during  the  pendency  of  the  action 
he  had  no  actual  notice  thereof,  in  time  to  appear  in  court 
and  make  his  defense. 

Each  and  all  of  the  foregoing  should  be  done  and  per- 
formed within  the  three  years  after  the  date  of  the  judg- 
ment.^" 

Sec.  65.     Service  by  publication  on  unknown  heirs. 

In  actions  where  it  is  necessary  to  make  the  heirs  or  dev- 
isees of  any  deceased  person  defendants,  and  it  is  made 
to  appear  by  the  affidavit  of  the  plaintiff,  annexed  to  his 
petition,  that  the  names  of  such  heirs,  or  devisees,  or  any 
of  them,  and  their  residences  are  unknown  to  plaintiff,  pro- 
ceedings may  be  had  against  such  unknown  heirs  or  devisees, 
without  naming  them.  In  such  actions  service  may  be  had 
upon  such  defendants  by  publication,  and  the  notice  is  re- 
quired to  be  published  as  in  other  cases  of  service  by  pub- 
lication.^^ 

Sec.  66.  Procedure  where  part  only  of  the  defendants  are 
served. 
Where  the  action  is  against  two  or  more  defendants,  and 
one  or  more  have  been  served,  but  not  all  of  them,  the 
plaintiff  may  proceed  as  follows:  First,  if  the  action  be 
against    defendants    jointly    indebted    on    contract,    he    may 

10  Albright  v.  Warkentin,  31  Kan.  "  Snyder,  5,618;  Act  of  March  4, 

442,  2  Pac.  614;  Flint  v.  Dunlavey,       1905. 
37  Kan.  332,  15  Pac.  208. 


§§67,68  merwine's  trial  of  title  to  land.  6Q 

proceed  against  the  defendants  served,  unless  the  court 
otherwise  directs;  and  if  he  recover  judgment,  it  may  be 
entered  against  all  the  defendants  thus  jointly  indebted,  so 
far  only  as  it  may  be  enforced  against  the  joint  property  of 
all,  and  the  separate  property  of  the  defendants  served;  and 
if  they  are  subject  to  arrest,  against  the  persons  of  the 
defendants  served.  Second,  if  the  action  be  against  de- 
fendants severally  liable,  he  may,  without  prejudice  to  his 
rights  against  those  not  served,  proceed  against  the  defend- 
ants served  in  the  same  manner  as  if  they  were  the  only 
defendants.^- 

Sec.  67.     Procedure  against  several  defendants  on  promissory 
note. 

The  common  rule  governing  the  enforcement  of  joint  obli- 
gations, and  making  a  judgment  against  one  or  more  joint 
makers  of  a  promissory  note  a  bar  to  further  proceedings 
against  the  other  joint  makers,  has  been  so  far  modified  by 
our  statute,  as  that  obligations  appearing  to  be  joint  will 
be  presumed  to  be  joint  and  several  until  such  presumption 
is  in  some  manner  overcome ;  and  unless  such  presumption 
is  overcome,  any  one  or  more  joint  makers  of  a  promissory 
note  may  be  proceeded  against  severally  without  prejudice 
to  the  rights  of  the  holder  against  the  other  makers/^ 

Sec.  68.  Procedure  where  one  of  a  partnership  has  been 
served. 
Where  an  action  is  against  the  members  of  a  copartnership 
for  a  partnership  debt,  and  one  or  more  of  such  partners 
have  been  served  with  process,  but  not  all  of  them,  the 
plaintiff  may  proceed  with  his  action  against  the  defendant 
served,  and  if  he  recover  in  the  action,  he  may  have  judg- 
ment entered  against  all  the  defendants  jointly  indebted 
whether    served    with    process    or    not;    but    such    judgment 

.  12  Snyder,  5,619;  Wilson,  4,283.  i3  Outcault  v.  Collier,  8  Okla.  473, 

58  Pac.  642> 


67  COMMENCEMENT    OP    THE    ACTION    TO   TRANSFER.    §§  69-71 

cannot  be  enforced  against  the  defendants  not  served,  except 
against  the  copartnership  property.^* 

Sec.  69.    Judgment  in  the  action  no  bar  against  defendant 
not  served. 

Nothing  in  the  code,  nor  in  this  chapter,  shall  be  construed 
as  to  make  a  judgment  against  one  or  more  defendants 
jointly  or  severally  liable,  a  bar  to  another  action  against 
those  not  served.^^ 

Sec.  70.    Lis  pendens — No  notice,  if  service  be  not  had. 

When  the  petition  has  been  filed,  the  action  is  pending,  so 
as  to  charge  third  persons  with  notice  of  its  pendency,  and 
while  pending  no  interest  can  be  acquired  by  third  persons 
in  the  subject-matter  thereof,  as  against  plaintiff's  title;  but 
such  notice  will  be  of  no  avail  unless  a  summons  be  served 
or  is  published  more  than  sixty  days  after  the  filing  of  the 
petition.^® 

Sec.  71.    Judgment  a  lien  on  land  in  other  county,  when. 

When  any  part  of  real  property,  the  subject-matter  of  an 
action  is  situated  in  any  other  county  or  counties  than  the  one 
in  which  the  action  is  brought,  a  certified  copy  of  the  judgment 
in  such  action  must  be  recorded  in  the  office  of  the  register 
of  deeds  of  such  other  county,  or  counties,  before  it  will 
operate  therein  as  notice,  so  as  to  charge  third  persons,  as 

i4Symms    v.    Burnham,    6    Okla.  Pac.     114;     Harrod    v.     Burke,     76 

618,   52  Pac.   918.      One   member  of  Kan.   909,   92   Pac.   1,128;   McCIung 

a  firm  cannot  be  sued  for  the  debt  \.  Hohe,  10  Kan.   App.  93,  61   Pac. 

of  the  firm  without  joining  all  the  507;     Wellsford    v.    Durst,    8    Kan. 

members  of  the  firm  as  defendants.  App.    231,    55    Pac.    493;    John    v. 

Cox   V.   Gills,   etc.,   8    Okla.   485,   58  Strauss,  60  Kan.   136,  55  Pac.  845; 

Pac.  645.  Cornell  v.  Parkinson,  59   Kan.  365, 

15  Snyder,    5.620;    Wilson,    4,284;  53  Pac.  138:   Carr  v.  Burns,  1  Kan. 

Kansas,     4,514      (1901),     identical;  App.  232,  40  Pac.  1.087;  Wilkinson 

Jenks   V.    School    District,    18    Kan.  v.  Elliot,  43  Kan.  590,  23  Pac.  614; 

356.  Travis  v.  Topeka,   42  Kan.   625,   22 

18  Snyder,    5.621;    Wilson,    4,285.  Pac.    901;     Smith    v.    Kimball,    36 

For  construction  of  this  statute,  see  Kan.  474,   13   Pac.  801;   Hildebrand 

Core  V.    Smith,   23    Okla.    909,    102  v.  Nelson,  95  N.  W.    (Neb.)    1,068. 


§  71  merwine's  trial  of  title  to  land.  68 

provided  in  the  preceding  section.  It  will  operate  as  such, 
notice,  without  record,  in  the  county  where  it  is  rendered.^^ 
It  has  been  decided  that  a  judgment  in  the  district  court 
against  parties  who  had  been  seized  of  real  estate,  and  in 
whom  the  title  still  appeared  of  record,  becomes  a  lien  upon 
the  property,  notwithstanding  that  the  judgment  debtor  had 
previously  executed  a  deed  conveying  such  real  estate  to  a 
third  party,  regardless  of  whether  the  judgment  creditor  had 
actual  notice  of  such  conveyance  or  not.^* 

17  Snyder,    5,622;    Wilson,    4,286;       v.  Young,   8  Okla.  216;   Hubbard  v. 
Kansas,  4,516    (1901),   identical.  Jones,    61    Kan.    722,    60   Pac.    743. 

18  Lewis  V.  Atherton,  5   Okla.   90, 
47  Pac.  617;    see,   also,  Lowenstein 


CHAPTER   IV. 


ACTIONS  BY  OR  AGAINST  INFANTS. 


SECTION 

72.  Actions  by  or  against  infawts — 

History  of  the  law  as  to  the 
duties  of  next  friend  and 
guardian  ad  litem. 

73.  Actions  by  or  against  infants — 

Court  has  power  to  order  pay- 
ment of  fee  for  guardian  ad 
litem. 

74.  Actions  by  or  against  infants — 

The  guardian  ad  litem  may 
employ  an  attorney,  when. 

75.  Actions  by  or  against  infants- 

guardian  ad  litem  allowed  at- 
torney's fee  for  counsel  em- 
ployed by  him  in  allowance  of 
his  own  account,  when. 

76.  Actions  by  or  against  infants — 

Nature  of  the  duties  of  the 
guardian  ad  litem. 

77.  Actions  by  or  against  infants — 

The  next  friend  no  party  to 
the  action — May  employ  coun- 
sel. 


SECTION  , 

78.  Actions  by  or  against  infants — 

The  next  friend  and  guardian 
ad  litem  perform  the  same 
functions. 

79.  Actions  by  or  against  infants — 

Statutory  provisions. 

80.  Actions  by  or  against  infants — 

The  service  of  summons  upon 
an  infant  under  fourteen  years 
of  age — Over  fourteen  years  of 
age. 

81.  Actions  by  or  against  infants — 

Where  infant  not  served  judg- 
ment void. 

82.  Action  by  infant  after  disability 

of  infancy  removed — Procedure 

in  action  on  becoming  of  age. 
82a.  Restoration  of  purchase  money 

in    suits   to   disaffirm    deed. 
82b.  Conveyance     by     minor     Creek 

freedman. 


Sec.  72.    Actions  by  or  against  infants— History  of  the  law  as 
to  the   duties   of  next  friend   and  guardian  ad 
litem. 
It  has  been  a  rule  of  law  from  time  immemorial  that  the 
next  friend  must  bring  the  action  for  an  infant.     In  the  time 
of  Lord  Thurlow   and  Lord  Hardwick,   in  England,  the   fees 
of  counsel  were  allowed  as  costs  in  the  action  for  an  infant. 
The  former  laid  down  the  rule  that  no  mistake  or  misappre- 
hension would  be  sufficient  to  charge  the  prochein  ami  with 
the  costs,  and  that  anyone  who  would  stand  forward  in  that 
character  on  behalf  of  the  infant,  ought  to  be  encouraged  to 


§  72  MERWINE  'S   TRIAL   OF   TITLE    TO   LAND.  70 

every  possible  extent  which  he  could  be  supposed  to  intend 
beneficial  to  the  infant.  And  the  latter  laid  down  the  rule 
that  when  it  appears  that  the  next  friend  was  sufficiently 
warranted  to  bring  the  suit,  and  it  was  brought  and  continued 
in  a  reasonable  manner,  without  laches,  then,  the  infant  ought 
to  reimburse  him.^  It  has  always  been  the  practice  of  English 
courts  to  bring  the  infant  into  court,  and  ask  permission  to 
have  a  guardian  ad  litem  appointed  for  him.-  The  highest 
tribunal  in  our  land  has  declared  the  English  practice  its 
practice,  in  the  prosecution  or  defense  of  an  infant  by  next 
friend  or  guardian  ad  litcm.^  And  this  rule  of  practice  has 
been  adopted  by  the  various  States  of  the  Union.  In  order 
to  carry  out  the  practice,  it  is  necessary  that  the  guardian 
ad  litem  be  empowered  to  secure  and  retain  the  services  of 
an  attorney,  and  the  attorney's  compensation  will  come  under 
the  allovv^ance  by  the  court  out  of  the  funds  placed  in  the 
hands  of  the  court,  or  under  its  control,  by  the  services  of 
such  attorney.* 

The  general  guardian  of  an  infant  is  required  to  appear 
for  and  represent  his  ward  in  all  legal  suits  and  proceedings, 
unless  another  person  is  appointed  for  that  purpose,  as  guard- 
ian or  next  friend.^  It  is  further  provided  by  statute  in  the 
chapter  relating  to  the  general  guardian  of  minors,  that 
nothing  contained  therein  shall  affect  or  impair  the  power 
of  any  court  to  appoint  a  guardian  to  defend  the  interests 
of  any  minor  interested  in  any  suit  or  matter  pending 
therein.^ 


1  Whittaker    v.    Marian,    1    Cox's  s  Marshall,    J.,    in    United    States 
Case,      285;      Tainer      v.      Ivie,      2  v.  Rich,   8  Pet.    128. 

Ves.    Jr.   R.    466 ;    Pierce   v.   Pierce,  4  Stewart  v.  Hoare,   2   Bro.   C.   C. 

9  Ves.  R.  547.  663;  Fearns  v.  Young,  10  Ves.  184; 

2  Loyd   V.   Carew,   L.   Eq.   C.   Abr.  Crump  v.  Baker,  18  Ves.  285;  Union 
260;   Johnson  v.  Pfeil,  9  Ves.   357;  v.  Van  Rensalaer,  4  Paige,  84. 
Lushington  v.   Sewell,   6  Madd.  28;  s  Snyder,    5,490;     Wilson,     1,832; 
Egremont  v.   Egremont,   2   DeG.,  N.  California,   1,769    (Kerr). 

and      G.;      Bennison      v.     Wortley,  e  Snyder,    5,484;     Wilson,     1,826. 
DeG.  Sen.   648. 


71  ACTIONS   BY   OR   AGAINST    INFANTS.  §  73 

Sec.  73.  Actions  by  or  against  infants — Court  has  power  to 
order  payment  of  fee  for  guardian  ad  litem. 

It  is  now,  and  has  been  the  universal  rule  of  the  courts 
to  allow  a  fee  to  be  paid  for  counsel  for  guardian  ad  litem, 
for  his  services  in  protecting  the  interests  of  the  infant  out 
of  any  fund  in  the  control  of  the  court,  and  placed  there 
by  the  services  of  the  attorney  for  the  guardian  ad  litem. 

It  cannot  be  seriously  controverted  that  a  guardian  ad  litem 
appointed  by  the  court  for  an  infant,  is  entitled  to  compensa- 
tion. If  the  law  were  otherwise,  the  rights  of  infants  would 
be  at  the  mercy  of  anyone  who  saw  fit  to  evade  them.  The 
statutes  which  make  provision  for  the  appointment  of  these 
officers  imply  that  they  should  be  compensated,  and  the 
proper  court  should  fix  their  compensation  as  the  one  which 
is  the  witness  of  their  services.  That  proposition  cannot  be 
gainsaid  and  has  been  uniformly  so  held.''' 

Another  court  of  last  resort  has  held  that  where  an  at- 
torney appears  for  the  guardian  ad  litem,  the  relation  of  the 
attorney  to  the  infant  is  the  same  as  it  would  have  been  to 
an  adult.  It  is  further  held  that  this  doctrine  did  not  at  all 
conflict  with  cases  holding  that  an  infant  cannot  appear  or 
plead  by  an  attorney.  The  ground  is,  that  after  the  guardian 
ad  litem  has  been  appointed,  he  aids  the  infant  in  selecting 
counsel  and  conducting  the  defense.     That  it  is  the  employ- 

7  Walton   V.    Yore,    58    Mo.    App.  108  Tenn.  442;   Boring  v.  Jude,  53 

565;     Nagel    v.    Sclmlling,    14    Mo.  S.  W.  763.     A  suit  was  brought  in 

App.   576;    In   the  Matter   of   Mat-  the     name     of     certain    minors    by 

thews,  27  Hun,  254;   Gott  v.   Cook,  request    of     their     guardian.       The 

7    Paige,    52;    Herbaugh    v.    Vance,  minors    were    the    real    parties    in 

5    Lea     (Tenn.),     113;     Wilbur    v.  interest.      It    did    not    appear    that 

Wilbur,     138     111.    446;     McCue    v.  there  was  any  intention  on  the  part 

O'Hara,  5  Radf.   (X.  Y.)   336;  Hallo-  of    the    attorneys     to    look    to    the 


way   V.    Mcllhanney,    17    Tex.  657 

Robinson  v.  Fidelity,  11  S.  W.  106 

Stewart  v.  Hoare,  2  Bro.  C.  C.  663 

Fearns     v.     Young,     10    Ves.  184 


guardian  for  compensation,  nor  on 
the  part  of  the  guardian  to  become 
(personally  liable  therefor.  Held, 
that  a  court  of  equity  would  charge 


Crump  V.  Baker,  18  Ves.  285;  Union  the  estate  of  the  minors  with  such 
V.  Van  Rensalaer,  4  Paige,  84;  compensation.  Fillmore  v.  Wells, 
American  v.   Davis,   67   S.  W,   864,       10  Colo.  228,  15  Pac.  343. 


§  74  MERWINE  'S    TRIAL    OF    TITLE    TO   LAND.  72 

ment  of  the  infant  is  evidence  from  the  fact  that  the  infant 
and  not  the  guardian  pays  such  attorney.  The  legal  services 
are,  in  such  cases,  necessary.^  The  court  appointing  the 
guardian  ad  litem,  usually  fixes  the  amount  of  the  fee.  And 
such  amount  is  fixed,  having  regard  to  the  character  of  the 
litigation,  and  the  services  actually  rendered  by  such  guard- 
ian ad  litem.^ 


Sec.  74.  Actions  by  or  against  infants— The  guardian  ad 
litem  may  employ  an  attorney,  vvhen. 
The  guardian  ad  litem  may  employ  assistance  even  when 
he  is  an  attorney,  and  the  assisting  attorney  may  be  allowed 
fees  where  the  necessity  of  the  case  demands  it.  Where  a 
guardian  ad  litem  who  is  an  attorney,  employs  counsel  to 
assist  him  in  conducting  the  litigation  for  his  wards,  he 
should  be  allowed  a  reasonable  compensation  for  such  counsel, 
for  the  performance  of  such  services  only  as  such  guardian 
himself  could  not  properly  be  expected  to  perform.^" 


8  Alexander  V.  Frarey,  9  Ind.  484;  the    guardian    ad    litem's    right    to 
Doe  V.  Brown,  8  Blackf.   (Ind.)  443.  appeal    was    opposed,   and    the   gen- 

9  15  Am.  and  Eng.  Enc.  Law,  14.  eral  guardian  attempted  to  procure 

10  Richardson  v.  Tyson,  86  N.  W.  his    discharge    and    opposed   all    his 
(Wis.)     250;    Tyson    v.    Tyson,    94  efforts     on     behalf     of     his     wards. 

Wis.  225,  68  X.  W.  1,015;  Hamacker  Held,  that  the  compensation  of  the 

V.    Bank,    95    Wis.    359,    70    X.    W.  guardian    ad    litem    for    services    in 

295;     Thompson    v.    Ins.    Co.,     136  the    trial    court    was    fixed    by    the 

U.  S.  287;  Henry  v.  Henry,  103  Ala.  agreement,  but  the  circumstances  of 

582.       Before    his     appointment    as  the    appeal   were    so    changed   from 

guardian     ad     litem,     an     attorney  those  contemplated  when  the  agree- 

agreed  to  accept   such   appointment  ment   was   made   that  compensation 

in  a  protested  suit,  and  conduct  the  will   not   be  awarded  on  the   agree- 

litigation  therein  for  his  wards  for  ment.       In    this    case    the    general 

a   specified   sum   in   the   trial   court,  guardian  opposed  the  action  of  the 

and  the   like  sum   for  an  appeal  to  guardian   ad   litem,    and    attempted 

the    Supreme    Court.      He    received  to    prevent    his    taking    an    appeal, 

and    receipted    for    the    agreed    sum  whereby  his  wards  were  saved  large 

after  the  trial.     Thereafter,  the  op-  sums     of     money.       Richardson     v. 

posing    counsel    was    changed,    and  Tyson,  86  N.  W.   (Wis.)    250. 


73  ACTIONS   BY    OR    AGAINST    INFANTS.  §§75,76 

Sec.  75.     Actions  by  or  against  infants — Guardian  ad  litem 
allowed  attorney's  fee  for  counsel  employed  by 
him  in  allowance  of  his  own  account,  when. 
If  the  guardian  ad  litem,  who  is  a  lawyer  and  attorney,  acts 
fairly,  makes  full  disclosure,   and  does  not  make  unreason- 
able  demands   for   credit   or   allowance,   he   may  be   allowed 
compensation   for   services,   and   such   necessary   attorney   fees 
filed  in  his  account.     This  rule  was  enforced  in  a  case  where 
the  guardian  ad  litem  gave  services,   and  when  his  account 
came  up  for  allowance,  it  was  resisted  by  those  interested  in 
the   property   in   litigation,    which   necessitated   the    appoint- 
ment  and    services    of   a    guardian    ad   litem    for    the   infant 
heirs. ^^ 

Sec.  76.  Actions  by  or  against  infants — ^Nature  of  the  duties 
of  the  guardian  ad  litem. 

The  duties  of  a  guardian  ad  litem  are  in  no  wise  like  those 
of  a  guardian  of  the  person  and  estate  of  a  ward  appointed 
by  the  county  court.  The  guardian  ad  litem  has  nothing  to 
do  with  the  management  of  the  property  of  the  infant  in  the 
suit  in  which  he  has  been  appointed  guardian  ad  litem.  He 
has  no  authority  over  the  property  or  the  person  of  the  infant 
for  whom  he  acts.  All  that  the  guardian  ad  litem  does  is 
under  the  control  and  supervision  of  the  court  having  con- 
trol of  the  case  in  which  he  was  appointed.^- 

In  an  action  in  the  probate  court  to  enforce  an  agreement 
for  the  conveyance  of  real  estate  under  the  terms  of  a  will,  a 
guardian  of  a  minor  has  no  authority  to  waive  the  issuance 
and  service  of  summons  on  his  ward  and  dispense  with  the 
services  of  a  guardian  ad  litem,  unless  authorized  by  statute. 
A  judgment  against  a  minor  in  a  case  in  which  he  has  not 
had  his  day  in  court,  will  he  reversible  on  petition  in  error 
within  the  statutory  time  after  reaching  the  age  of  majority.^^ 

11  Richardson  v.  Tyson,  86  X.  W.  is  Roberts    v.    Roberts,    61    0.    S. 
(Wis.)    260-.                                                    896. 

12  Marsh    v.    Marsh,    4    A.    L.    R. 
(Ohio),  25. 


§  76  merwine's  trial  of  title  to  land.  74 

Counsel  should  remember  always  that  the  provisions  of  the 
statute  as  to  service  of  summons  upon  an  infant  defendant, 
and  the  requirements  of  the  law  as  to  methods  of  procedure 
in  all  cases  in  which  an  infant  is  interested,  are  made  for 
the  protection  of  the  infant.  These  requirements  of  the  law 
are  not  mere  matters  of  form  to  he  treated  lightly  and  con- 
sidered of  no  importance.  Because  no  one  appears  for  the 
infant,  the  attorney  conducting  the  proceedings,  somehow 
conceives  the  notion  that  the  requirement  is  only  a  matter  of 
form ;  but  as  it  is  necessary  to  give  good  title  for  all  real 
estate  sold  at  judicial  sale,  a  strict  compliance  with  the 
statute  in  all  eases  affecting  an  infant's  lands  being  sold  by 
order  of  court,  must  be  complied  with.  The  skillful  exam- 
iner of  title  to  such  real  estate,  and  the  careful  lawyer  who 
conducts  the  action  in  which  real  estate  is  sold  by  order 
of  court  is  most  particular  to  see  to  it  that  the  foregoing 
provisions  of  the  law  for  the  protection  of  the  infant  are 
carefully  and  scrupulously  complied  with.  The  service  of 
summons  upon  an  infant,  no  matter  how  young,  must  be  in 
strict  compliance  with  the  requirements  of  the  statute,  and 
these  requirements  of  the  statute  are  never,  at  any  time,  in 
any  action,  to  be  considered  as  mere  formal  matters;  for  a 
suit  cannot  be  prosecuted  against  an  infant  without  such 
service,  and,  in  certain  instances,  without  such  guardian, 
unless  especially  excepted  in  special  statutory  proceedings. 
It  is  the  purpose  of  the  State  to  secure  for  the  infant  a  real 
and  proper  defense ;  and  such  guardian  ad  litem,  has  not  done 
his  duty  by  simply  filing  an  answer  as  required  by  statute. 
The  law  demands  that  he  inquire  of  the  infant  if  old  enough 
to  converse  intelligently,  and  his  friends,  and  from  all  proper 
sources  of  information,  what  the  rights  of  the  infant  are,  and 
he  is  required  to  set  such  rights  before  the  court  in  the 
proper  manner,  and  by  proper  evidence  at  the  hearing  of  the 
case.  It  is  the  bounden  duty  of  such  guardian  ad  litem  not 
only  to  file  his  answer  of  denial,  but  also  to  protect  the 
interests  of  his  wards.  And  the  court  will  never,  when  its 
attention  is  called  to  it,  allow  the  guardian  ad  litem  to  suffer 


75  ACTIONS   BY   OR   AGAINST    INFANTS.  §  76 

his  ward  to  be  prejudiced  by  omissions  or  laches.  Such 
answers  too  frequently  are  filed,  and  the  proceedings  on 
behalf  of  the  infant  are  conducted  as  though  the  action  as 
to  the  infant  were  an  amicable  matter,  and  in  the  nature 
of  an  ex  parte  proceeding,  involving  no  subject  of  real  con- 
troversy. This  is  a  mistake,  and  want  of  attention  as  to  such 
matters  on  the  part  of  attorneys  and  courts,  is,  and  has  been, 
prolific  of  useless  litigation,  and  the  source  of  many  imper- 
fect real  estate  titles  throughout  the  State.^* 

An  infant  two  months  old  cannot  be  divested  of  real  estate 
in  which  he  owns  the  fee  simple  title,  by  a  judicial  proceed- 
ing to  which  he  was  not  a  party,  of  which  he  had  no  notice, 
and  in  which  he  was  not  represented  by  a  guardian  or  other- 
wise.^^ 

The  requirements  of  the  law  as  to  service  of  summons 
upon  infants  are  so  strict  that  in  one  instance,  where  the 
infant  was  five  or  six  years  old,  the  court  set  aside  a  decree, 
long  after  it  was  entered,  authorizing  the  disposition  of  the 
infant's  real  estate,  even  where  a  guardian  ad  litem  had  been 
appointed  and  had  filed  an  answer  in  the  case  for  the  infant, 
the  infant  not  having  been  served  with  summons.  The 
service  of  the  summons  in  the  action,  as  shown  by  the  return 
of  the  writ,  was  by  reading  the  same  to  the  mother  and 
stepfather 


16 


i+Long  V.  :Mulford,  17  0.  S.  503;  terial    averments    in    the    adminis- 

Dowe  V.  Jewell,    1   Foster    (N.  H.),  trator's  petition.      Wood  v.   Butler, 

486;    Knickerbocker   v.    DeFrust,    2  23   O.   S.  520;   but,   see,  Randall  v. 

Paige,  804;    Sconce  v.   Whitney,    12  Turner,    17    O.    S.    262;    Masscy    v. 

III.  150;  Enos  V.  Capps,  12  111.  257.  Donaldson,   8   Ohio,   377.     A   decree 

In  a  proceeding  by  an  administrator  against   minor    defendants    rendered 

for  the  sale  of  lands  to  pay  debts,  upon   an   answer   of  their  guardian 

the  answer  of  the  guardian  ad  litem  ad    litem,    can    be    impeached    and 

for    the    minor    heirs,    alleging    his  reversed     for     fraud.       Massey     v. 

ignorance  of  the  matters   contained  Mathews,  12  0.  362. 

in    the    petition,    and    praying    that  is  Crapster    v.    Taylor,    74    Kan. 

the  rights  of  his  wards  be  protected,  771,  87  Pac.  1,138. 

has  the  effect  of   a   general   denial,  is  Moore  v.  Starks,  1  0.  S.  371. 
and   requires   proof   of   all   the   ma- 


§§  77, 78  merwine's  trial  of  title  to  land.  76 

It  lias  been  said  by  a  learned  author  upon  this  subject  of 
the  appointment  and  duties  of  a  guardian  ad  litem: 

"The  matter  of  the  appointment  of  a  guardian  ad  litem,  I 
fear,  is  too  often  regarded  as  a  mere  matter  of  form.  At- 
torneys, likewise,  seem  to  be  imbued  with  the  idea  that  it 
is  for  the  purpose  of  complying  with  the  statutory  provision. 
Such  is  not  its  object.  The  object  and  intent  of  the  statute 
is,  that  such  attorney  should  carefully  investigate  the  rights 
of  his  ward,  and  should  look  after  them  with  a  higher  con- 
scientious regard  of  his  duty  than  is  required  in  ordinary 
cases.  These  minor  defendants,  by  reason  of  want  of  years, 
are  unable  to  know  their  rights,  or  protect  them.  Attorneys 
w4io  act  as  such  guardian  ad  litem  should  not  be  affronted 
if  the  courts  in  such  cases  make  direct  inquiry  as  to  whether 
they  have  carefully  looked  into  the  infant's  rights."" 

Sec.  77.    Actions  by  or  against  infants — The  next  friend  no 
party  to  the  action — May  employ  counsel. 

The  relation  of  prochein  ami  to  the  action,  and  his  duties, 
are  simple  and  well  defined.  He  is  no  party  to  the  suit  in 
the  technical  sense  of  the  term,  although  he  is  responsible 
for  the  costs.  He  is  considered  as  an  officer  of  the  court, 
especially  appointed  by  it  to  look  after  the  interest  of  the 
infant  in  whose  behalf  he  acts.  One  of  the  duties  required 
of  him  is  that  of  employing  an  attorney  to  conduct  the  suit, 
as  he  is  not  supposed  to  be  a  person  learned  in  the  law,  and 
his  intervention  is,  by  no  means,  to  dispense  with  the  serv- 
ices of  an  attorney  to  carry  on  the  proceedings,  and  try  the 
case  if  necessary.^^ 

Sec.  78.    Actions  by  or  against  infants — The  next  friend  and 
guardian  ad  litem  perform  the   same  functions. 

The  guardian  ad  litem  appointed  by  the  court  to  protect 
the  rights  of  an  infant   defendant,  should  file  a  general   de- 

17  Probate    Practice,    Vol.    I,    Sec.  is  Baltimore     v.     Fitzpatrick,     35 

844,  Judge  Rockel    (Ohio).  Md.  624. 


77  ACTIONS   BY   OR   AGAINST    INFANTS.  §  78 

nial,  and,  in  case  the  proper  protection  of  the  rights  of  his 
ward  require  it,  he  may  take  such  affirmative  action,  by- 
filing  petition,  or  cross-petition,  and  other  pleading,  as  may 
be  necessary  for  that  purpose.  In  a  case  where  the  rights 
of  the  infant  require  it  for  his  protection,  the  guardian 
ad  litem  should  file  a  denial  as  in  actions  for  adults. 

At  common  law,  infants  were  required  to  sue  by  guardian 
ad  litem,  but  by  the  statute  of  "Westminster,  they  were  author- 
ized to  sue  by  next  friend  in  all  actions,  and  the  remedy  was 
held  to  be  cumulative,  rendering  it  optional  for  the  suit  to 
be  brought  by  a  guardian  ad  litem,  or  next  friend.  In  respect 
to  the  representation  of  an  infant  plaintiff  by  counsel,  or 
guardian  ad  litem,  there  would  seem  to  be  little,  if  any, 
difference  between  the  functions  of  a  guardian  ad  litem  and 
of  a  next  friend.  It  may  be  well  said  that  a  guardian  ad 
litem  appointed  by  the  court  for  an  infant  defendant,  in 
addition  to  filing  a  general  denial,  has  not  only  the  power, 
but  it  is  his  duty  to  take  affirmative  action  and  prosecute 
by  cross-petition,  if  it  should  be  found  necessary,  and  it 
was  for  the  protection  of  the  interests  of  the  ward."  "We 
here  quote  from  a  standard  work  on  this  subject: 

"A  next  friend  is  one,  who,  though  not  properly  appointed 
guardian,  represents  in  a  suit,  a  party  thereto,  who  is  not 
sui  generis,  as  an  infant.  The  term  is  synonymous  with 
prochein  ami.  There  is  but  little  substantial  difference  be- 
tween the  office  of  next  friend  and  that  of  guardian  ad  litem. 
The  chief  distinction  is  that  the  former  is  usually  applied  to 
one  who  appears  on  behalf  of  a  plaintiff,  while  the  corre- 
sponding representation  of  a  defendant  is  usually  denomi- 
nated guardian  ad  litem.'' ^ '^'^ 


19  Schade  v.  Connor,  126  N.  W.  him  as  such,  is  provided  in  this 
(Neb.,  1910),  1,013;  Grosovosky  v.  State,  still  he  is  in  all  respects 
Goldenburg,  86  X.  W.  378.  the  next  friend  of  the  infant.     Simp- 

20  14  Enc.  Prac.  997.  Although  son  v.  ALxander,  6  Coldw.  (Tenn.) 
the   practice   of   allowing  an   infant  619. 

to   sue  by  his   guardian,   describing 


§  79  merwine's  trial  op  title  to  land.  78 

Sec.  79.     Actions  by  or  against  infants — Statutory  provisions. 

In  some  jurisdictions  the  general  guardian  alone  has  power 
to  bring  and  defend  actions  for  an  infant.  But  the  matter 
is  regulated  in  this  State  by  statute.  The  guardian  of  the 
infant,  or  his  next  friend,  is  authorized  to  bring  an  action 
for  the  infant,  or  to  defend  an  action  for  him.  The  following 
are  the  statutory  provisions  in  regard  thereto : 

(a)  A  general  guardian  must  appear  for  and  represent 
his  ward  in  all  legal  suits  and  proceedings,  unless  another 
person  is  appointed  for  that  purpose,  as  guardian  or  next 
friend.^^ 

(&)  The  action  of  an  infant  must  be  brought  by  his 
guardian  or  next  friend.  When  the  action  is  brought  by  his 
next  friend  the  court  has  power  to  dismiss  it  if  it  is  not 
for  the  benefit  of  the  infant,  or  substitute  the  guardian  of 
the  infant,  or  any  person  as  next  friend.-^ 

(c)  Nothing  contained  in  the  chapter  concerning  the 
guardianship  of  infants  and  insane  or  incompetents,  affects 
or  impairs  the  power  of  any  court  to  appoint  a  guardian  to 
defend  the  interests  of  any  minor  interested  in  any  suit  or 
matter  pending  therein.^^ 

The  question  arises.  Why  did  the  Legislature  enact  that  a 
court  had  power  to  substitute  the  guardian  for  the  next 
friend,  if  the  action  could  not  be  brought  by  the  next  friend 
when  there  was  a  general  guardian?  It  seems  clear  from 
the  above  enactment  that  the  Legislature  intended  the  action 
to  be  brought  by  the  next  friend,  even  in  cases  where  there 
is  a  general  guardian.  This  would  seem  to  be  not  only  the 
logic,  but  the  common  sense,  as  well  as  the  spirit  and  purpose 
of  these  statutory  provisions. 


21  Snyder,    5,490;    Wilson,    1,832;  22  Snyder,    5,563;    Wilson,    4,227; 

California,  1,763    (Kerr),  similar.  Kansas,    4,459     (1901),    identical. 

23  Snyder,  5,584;  Wilson,  1,826. 


79  ACTIONS   BY   OR   AGAINST    INFANTS,  §§80,81 

Sec.  80.  Action  by  or  against  infants — The  service  of  sum- 
mons upon  an  infant  under  fourteen  years  of 
age — Over  fourteen  years  of  age. 

When  the  defendant  is  a  minor,  under  the  age  of  fourteen 
years,  the  service  must  be  upon  him  and  upon  his  guardian 
or  father,  or  if  neither  of  these  can  be  found,  then  upon  his 
mother,  or  the  person  having  the  care  and  control  of  the 
infant,  or  with  whom  he  lives.  If  neither  of  these  can  be 
found,  or  if  the  minor  be  more  than  fourteen  years  of  age, 
service  on  him  alone  wiii  be  sufficient.  The  manner  of  service 
may  be  the  same  as  in  case  of  adults.-* 

Sec.  81.  Actions  by  or  against  infants — Where  infant  not 
served,  judgment  void. 

The  service  of  summons  upon  an  infant  is  mandatory;  no 
matter  how  young  the  infant  may  be,  or  how  idle  the  service 
of  summons  on  a  child  may  seem,  the  statute  demands  service, 
and  it  must  be  complied  with.  Even  where  a  guardian 
ad  litem  has  been  appointed  and  interposes  a  defense  for 
infants,  and  the  record  shows  affirmatively  that  the  infants 
were  not  served  as  required  by  statute,  the  decree  entered 
against  them  is  void,  and  can  be  assailed  at  any  time,  any- 
where, and  in  any  action.-^ 

In  a  well-considered  case,  in  regard  to  this  question,  it  was 
said: 

''The  statute  requires  service  to  be  made  and  we  cannot 
dispense  with  its  requirements.  Nothing  discretionary  is  left 
with  the  court.  The  Legislature  prescribed  the  means  by 
which  the  court  shall  obtain  jurisdiction,  and  the  courts 
cannot  determine  that  anything  short  of  such  means  shall 
give  them  jurisdiction.  It  is  sometimes  said  that  it  can  be  a 
matter  of  no  importance,  whether  children,  such  as  these 
were,  are  served  with  process  or  not;  to  this  we  cannot  give 

24  Snyder,    5,611;    Wilson,    4.275;  25  Moore  v.  Starks,  1  O.  S.  369. 

Kansas,     5,405      (1901),     identical; 
Nebraska,    1,077     (1907),    identical. 


§  81  mebwine's  trial  of  title  to  land,  80 

our  assent,  and  even  if  it  were  so,  it  is  a  suggestion  proper 
for  the  Legislature  and  not  for  a  court — the  Legislature 
makes  the  rules  and  the  courts  have  to  be  bound  by  them. 
The  return  of  the  officer  is  evidence  to  the  court  and  to  the 
Avorld,  of  the  fact  that  the  party  has  been  subjected  to  its 
process  or  not ;  whether  he  has  been  brought  into  court ; 
whether  jurisdiction  is  claimed  to  have  been  obtained  over 
his  person.  If  the  process  is  returned  served,  it  is  proof 
of  that  fact.  If  the  return  is  no  service,  that  is  proof 
equally  explicit  that  no  service  has  been  made,  and  is  notice 
to  the  world  as  well  as  the  court,  to  parties  and  their  friends, 
that  no  service  is  claimed  to  have  been  made.  And  here  we 
will  remark  that  this  case  differs  from  cases  in  which  the 
record  is  silent  on  the  subject  of  process  or  service.  In 
such  cases  it  has  been  held  that  although  the  decree  of  the 
court  is  reversible  for  error,  not  showing  affirmatively  a 
necessary  fact,  yet,  where  jurisdiction  is  assumed  to  exercise 
jurisdiction  of  the  case,  it  will  be  presumed,  that,  notwith- 
standing the  silence  of  the  record,  the  court  had  obtained 
jurisdiction  over  the  person  of  the  defendant.  That  presump- 
tion is  rebutted  and  precluded  in  this  case  by  the  positive 
statement  of  the  record  that  no  service  was  made.  For  it 
is  to  be  remarked  that  in  those  eases  where,  the  record  being 
silent  on  the  question  of  service,  jurisdiction  has  been  ob- 
tained, it  has  always  been  held  that  it  was  competent  for 
the  defendant  to  rebut  the  presumption  of  service  by  affirma- 
tive proof  that  he  had  not  been  served,  then  the  record 
becomes  a  nullity  and  can  be  collaterally  impeached.  The 
record  in  this  case  furnishes  the  proof  that  no  service  was 
in  fact  made."-*' 

26  Moore  v.    Starks,    1    0.   S.   372.  A   stipulation   by   an   attorney  that 

When  the  record  of  a  cause  in  which  an      action      shall      abide      another 

a   judgment   is    rendered    against   a  action  pending,  will  bind  his  adult 

minor,     discloses     that     the     mode  clients,    but    not    an    infant    client, 

pointed  out  by  statute  for  obtaining  unless    the    same    is    approved    and 

jurisdiction,   has  not  been  followed,  ratified  by  the  court.     Idem  v.  Fin- 

the   judgment   is   void    on   its    face.  negan,  50  N.  W.  933.     The  require- 

Hughes  V.  Housel,   50  N.  W.   1,127.  ments  of  Section  76  of  the  Code  of 


81  ACTIONS   BY   OR    AGAINST    INFANTS.  §§  82,  82a 

Sec.  82.    Action  by  infant  after  disability  removed. 

Any  person  entitled  to  bring  an  action  for  the  recovery 
of  real  property,  who  may  be  under  any  legal  disability  when 
the  cause  of  action  accrues,  may  bring  his  action  within 
two  years  after  the  disability  has  been  removed.-' 

In  an  action  prosecuted  by  an  infant  plaintiff  by  next 
friend,  during  the  pendency  of  which  action  plaintiff  attains 
his  majority,  the  plaintiff,  if  he  desire,  may  then  continue 
the  action  in  his  own  name.  The  prosecution  of  an  action 
by  next  friend  is  a  protective  shield  thrown  around  the 
infant ;  and  an  objection  in  the  motion  for  new  trial,  and  the 
assignments  of  error  against  such  change  in  style,  will  not 
be  considered  on  appeal  to  this  court.-^ 

The  infant  is  the  party  to  the  action,  though  brought  by 
the  next  friend.^® 

Sec.  82a.  Restoration  of  purchase  money  in  suits  to  disaffirm 
—Contract  by  infant  for  improvements. 
Upon  the  disaffirmance  of  a  conveyance  made  by  a  minor 
Creek  freedman,  he  will  be  required  to  restore  such  of  the 
consideration  received  as  remains  in  his  hands;  but  such 
restoration  will  not  be  required  where  it  has  been  wasted, 
disposed  of,  or  consumed  during  minority,  and  his  estate  has 
not  been  benefited  thereby.^'' 

Civil  Procedure  are  mandatory,  and  29  Williams  v.  Richey,  3  Dill,  406. 
the   mode    therein    pointed    out    for  3o  Gill     v.     Haggerty,     122     Pac. 
service   of   summons   upon   a   minor  (Okla.)     641;    Blakemore   v.    John- 
defendant  under  the  age  of  fourteen  son,    24    Okla.    544,    103    Pac.    5o4; 
years,  must  be  strictly  pursued,  or  Colbert    v.    Alfrey,    168    Fed.    231, 
judament  rendered  against  him  will,  «3  C.  C.  A.  517 ;  Bragdon  v.  McShea, 
as  far  as   his   rights  are  concerned,  26  Okla.  35,   107  Pac.  916;    Stevens 
be   void.      Melcher    v.    Schluter,    93  v.    Elliott,    118    Pac.    (Okla.)     407; 
N    W    1  082.  Eureka  v.  Edwards,  71  Ala.  248,  46 
'27  Snyder,    5,549;    Wilson,    4,215;  Am.     Rep.     314;     Railway     Co.     v. 
Crapster    v.    Tavlor,    74    Kan.    771,  Higglns,   44   Ark.    293;    MoGreal   r. 
87  Pac    1  138      *  Taylor,   167  U.  S.   688,   17  Sup.  Ct. 

28  Webb     V.     Harris,     121     Pac.  961,  42  L.  Ed.  326. 
(Okla.)    1,083. 


§  82b  merwine's  trial  of  title  to  land.  82 

111  a  suit  in  equity,  by  a  minor  Creek  freedman  to  cancel 
and  annul  a  deed  executed  by  her  during  minority,  it  is  un- 
necessary to  formally  allege  an  offer  to  do  equity  by  return- 
ing the  consideration  received  by  her  during  minority.^^  A 
deed  so  made  by  such  person  is  void.^^ 

Sec.    82b.    Conveyance    by   married   minor    Creek    freedman, 
void. 

The  marriage  of  a  Creek  freedman  under  the  age  of 
twenty-one  years,  does  not  affect  the  restrictions  imposed 
by  acts  of  Congress  and  treaty  provisions  against  the  sale  of 
his  allotments  during  minority ;  and  a  conveyance  by  such 
minor  of  his  allotment  is  void,  notwithstanding  his  marriage 
prior  to  the  execution  of  such  conveyance. ^^ 

A  minor  within  the  meaning  of  the  Federal  law,  includes 
males  under  the  age  of  twenty-one  years  and  females  under 
the  age  of  eighteen  years,  and  the  marriage  of  such  minor 
does  not  confer  upon  him  or  her  the  authority  to  sell  his  or 
her  allotted  lands  independent  of  the  jurisdiction  and  super- 
vision of  the  probate  courts  of  the  State.^* 

A  contract  entered  into  subsequent  to  the  passage  of  the 
Curtis  Bill,^^  and  prior  to  the  Creek  Treaty,^"  purporting  to 
bind  certain  infants  for  the  purchase  price  of  improvements 
upon  lands  in  the  Creek  Nation,  taken  by  them  as  allotments, 
executed  by  their  natural  guardian,  who  did  not  submit 
himself  or  his  actions  to  a  court  having  jurisdiction,  is  void 
as  to  such  infants.^'^ 

31  Stevens  v.  Elliott,  118  Pac.  34  Jefferson  v.  Winkler,  26  Okla. 
(Okla.)  407.                                                 653,  110  Pac.  755;  Gill  v.  Haggerty, 

32  Stevens     v.     Elliott,     118     Pac.      122  Pac.  (Okla.)  641. 

(Okla.)   407.     This  was  in  violation  35  Act  June   28,   1898,   Chap.   517, 

of  Sec.  16,  Act  of  June  30,  1902.  30   Stat.   L.   495. 

33  Gill  V.  Haggerty,  122  Pac.  36  Act  March  1,  1901,  Chap.  676, 
(Okla.)    641;    Jefferson  v.   Winkler,  31   Stat.  L.  861. 

26  Okla.  653,  110  Pac.  755.  37  Beck  v.  Johnson,  23  Okla.  812, 

101  Pac.  1,109. 


CHAPTER   V. 

THE  LAW  AND  PROCEDURE  BY  WHICH  REAL  ESTATE 

IS  SOLD  UNDER  EXECUTION  AND  ORDERS  OF 

SALE— THE  JUDGMENT. 


SECTION 

83.  Preliminary  statement. 

84.  What  is  a  judgment  and  what 

is  an  order. 

85.  The    judgment    must    be    con- 

fined  to   the   issues. 

86.  The    judgment    must    conform 

to  the  verdict. 

87.  Judgments     without     jurisdic- 

diction  of  the  parties  or  the 
subject-matter  are  void. 

88.  Judgments      import      absolute 

verity  and  cannot  be  col- 
laterally attacked. 

89.  Judgment  of   the   court  as   be- 

tween  the  parties,   final. 

90.  The    efTect    of    the    finding    of 

the  court  of  facts  giving  it 
power  to  enter  judgment. 

91.  Effect    of    void    and    voidable 

judgments. 

92.  Void   judgments. 

93.  Judgment  may  determine  ulti- 

mate riglit  of  parties — 
Judgment  may  be  rendered 
against  one  or  more  parties. 

94.  Dismissal    of    an    action    with- 

out  prejudice. 

95.  Plaintiff    may    dismiss    certain 

actions. 

96.  Dismissal   may   not   afTect   set- 

off or  counterclaim,  when. 

97.  The  judgment   in  an  action  to 

enforce  a  mortgage  or  other 
lien — The  order  of  sale. 

98.  Judgment   ordering  conveyance 

— By  whom  and  how  secured. 
83 


SECTION 

99.  Judgment — Failure  to  answer 
— Court  may  taka  an  ac- 
count. 

100.  Judgment  by  confession. 

101.  Judgment    confessed    by    war- 

rant of  attorney. 

102.  Cause      of      action      must     be 

stated  briefly  in  judgment. 

103.  Affidavit   must  be   filed   before 

judgment. 

104.  Judgment     by     confession     en- 

forced as  other  judgments. 

105.  Warrant    confessing    judgment 

to  be  filed. 

106.  Confession     of     judgment     by 

prisoner. 

107.  Judgment  must  conform  to  the 

verdict. 
lOS.  Judgment  on  special  verdict. 

109.  Judgment  notwithstanding  the 

verdict. 

110.  Judgment    where    counterclaim 

or    set-off    exceeds    plaintiff's 
claim. 

111.  .Judgment  on  the  pleadings. 

112.  Judgments    concerning    infants 

set   aside,   when. 

113.  Judgments  in  district  ^court  on 

cases    appealed    from    county 
court. 

114.  Judgment    and    orders     to    be 

entered  on  journal. 

115.  The    clerk    to    make    complete 

record   in   case,  when. 

116.  .Judge  may  sign  record  at  next 

term. 


§  §  83,  84  MERWINE  'S   TRIAL    OF   TITLE   TO    LAND.  84 

SECTION  SECTION 

117.  What    papers    constitute    com-       124.  Judgments    recorded    in    office 

plete  record.  of  register  of  deeds-  -Effect  of. 

118.  Upon  failure  of  clerk  to  make       125.  Res      ad  judicata — Parties      de- 

complete    record,    court    may  fendant. 

do   so.  126.  Lis   pendens. 

119.  Judgment     becomes     dormant,       127.  Lis    pendens    as    to    lands    in 

when.  another   county. 

120.  Dormant   judgments — How    re-       128.  The  procedure   by  which  judg- 

vived.  mcnt  is  obtained  on  warrant 

121.  Judgment     lien — Gk;neral     dis-  of  attorney   to   confess   judg- 

cussion.  ment — Form  for  the  petition- 

122.  Judgment  of  county  court  lieu       129.  The    answer    confessing    judg- 

on   real   estate.  ment. 

123.  Lien  on  real  estate — Lien  dates       130.  The  judgment  by  confession. 

from,  when — Lien  on  judg- 
ment from  another  county, 
how   secured. 

Sec.  83.     Preliminary  statement. 

In  the  preparation  of  the  discussion  of  this  subject,  the 
author  has  not  been  unmindful  of  the  fact  that  the  arrange- 
ment thereof  is  illogical,  but  it  was  deemed  best  to  folio-w- 
as near  as  practicable  the  arrangement  of  the  statute  on  the 
subject,  upon  the  theory  that  the  practitioner  -would  be  more 
apt  to  find  the  la-w  under  the  plan  of  the  statute.  The 
subject  is  discussed  here  only  as  it  pertains  to  the  procedure 
in  land  litigation,  and  as  it  pertains  to  the  title  of  real 
estate.  There  are  many  other  topics  that  might  have  been 
included  in  this  chapter,  but  the  limitations  of  this  -work 
forbade  further  discussion  thereof. 

Sec.  84.     What  is  a  judgment  and  what  is  an  order? 

A  judgment  is  a  final  determination  of  the  rights  of  parties 
in  an  action,^  and  a  direction  of  a  court  or  judge,  made 
kno-wn  in  -writing,  and  not  included  in  a  judgment,  is  an 
order. 

The  statutory  definition  of  a  judgment  has  been  held 
broad  enough  to  comprise  all  final  judgments  and  all  final 
decrees.^ 

liSnyder,    5,916;     Wilson,    4,583;       Ohio  Gen.  Code,  Sec.  11,582  (1910), 
Kansas,     4,844      (1901),     identical;       identical. 
Nebraska,    1,413    (1907),   identical;  2  Conrad  v. 'Svereich,  50  0.  S.  450. 


85  REAL   ESTATE    UNDER   EXECUTION.— JUDGMENT.  §  84 

As  in  logic,  a  judgment  is  an  affirmation  of  a  relation  be- 
tween a  particular  predicate  and  particular  subject,  so,  in 
law,  it  is  an  affirmation  upon  the  law  of  the  legal  sequence 
attending  a  proved  or  admitted  state  of  facts.^ 

The  common  law  definition  of  a  judgment  is  the  decision 
or  sentence  of  the  law  pronounced  by  a  court  or  other  com- 
petent tribunal  upon  matter  contained  in  the  record.*  At 
common  law  an  oral  opinion  of  a  judgment  announced  by  a 
court  in  a  case  before  it,  was  a  good  judgment  and  an 
execution  could  be  issued  upon  it.  Under  the  general  codes 
of  the  various  States  a  judgment  carries  with  it  no  force 
until  recorded.  An  oral  judgment  or  decision  of  the  court 
is  completely  under  the  control  of  its  judge,  or  judges,  until 
final  decree  is  entered  of  record.^  The  minutes  entered  by  a 
judge  in  his  trial  docket  are  no  part  of  the  records  in  a 
case,  and  cannot  in  any  sense  be  called  a  judgment." 

A  decree  as  defined  by  Judge  Black,^  is  the  determination, 
sentence  or  judgment  of  equity  pronounced  by  a  competent 
court,  upon  a  controversy  submitted  for  its  decision.  The 
chief  points  of  difference  between  a  judgment  and  a  decree 
are  these :  A  judgment  in  a  contested  case  follows  the  finding 
of  a  verdict ;  a  decree  is  the  decision  of  a  judge  in  an  equity 
case,  passing  on  all  the  questions  raised ;  a  judgment  does 
not  compel  anything  but  the  payment  of  money,  and  this 
only  by  the  sale  of  the  debtor's  property;  a  decree  may 
enforce  the  doing  of  acts  other  than  the  payment  of  money, 


3  Black  on  Judgments,  Sec.  1.     A  Practice,     930;     Mahonings    Bank's 

judgment    is    a    final    consideration  Appeal,  32  Pa.  St.  160. 

and    determination    of    a    court    of  4  Wiley  v.  Lewis,  4  X.  P.    (Ohio), 

competent   jurisdiction  in   a  matter  212;  Freeman  on  Judgments,  Sec.  2. 

submitted    to    it.      Ihid.      Wliitwell  b  \Yiiey  v.  Lewis,  4  N.  P.   (Ohio), 

V.   Emery,    3    Mich.    84.      It    is   the  212;    but  see  Coe  v.   Erb,   59   0.   S. 

decision    or     sentence    of    the     law  259. 

given  by  a  court  of  justice,  or  other  6  Pennock  v.  Monroe,  5  Kan.  578 ; 

competent   tribunal,   as   a   result   of  Ward  v.  Urmson,  59  X.  W.    (Neb.) 

proceedings    instituted     therein    for  97;     Brown    v.     Eener,    59    N.    W. 

the  redress  of  an  injury.     Bouvier's  (Xeb. )    360. 

Law    Dictionary;     see    Tidd's    Law  7  Black  on  Judgments,  Sec.  1. 


§85  merwine's  trial  of  title  to  land.  86 

and  be  enforced  by  punishment  for  contempt  of  court ;  an 
execution  may  issue  upon  a  judgment,  and  upon  a  decree 
only  to  enforce  an  order  of  sale;  a  judgment  cannot  meet 
all  the  exigencies  of  litigation;  a  decree  may  do  this  in  so 
far  as  it  is  in  the  power  of  the  courts  to  enforce  anything. 

An  order  is,  ''a  decision  made  during  the  progress  of  a 
case,  either  prior  to  or  subsequent  to  final  judgment,  settling 
some  point  of  practice,  or  some  question  collateral  to  the 
main  issue,  presented  by  the  pleadings  and  necessary  to  be 
disposed  of,  before  such  issue  can  be  passed  on  by  the  court, 
or  necessary  to  be  determined  in  carrying  the  execution  into 
effect.^  An  order  must  be  in  writing  before  it  will  carry 
with  it  any  legal  sanction.^ 

Judgments  are  either  final  or  interlocutory.  An  order 
affecting  a  substantial  right  in  an  action,  when  such  order, 
in  effect,  determines  the  action  and  prevents  the  judgment, 
and  an  order  aft'ecting  a  substantial  right  made  in  a  special 
proceeding,  or  upon  a  summary  application  in  an  action 
after  judgment,  is  a  final  order.  All  further  proceedings 
made  during  litigation  of  any  case,  and  before  final  hearing 
on  its  merits,  are  interlocutory  orders.^" 

Judgments  are  not  self-executory.  They  require  some  min- 
isterial act  for  their  execution.^^  The  judgment  must  state 
the  amount  or  it  will  be  void.^^ 

Sec.  85.     The  judgment  must  be  confined  to  the  issues. 

The  examiner  of  title  to  real  estate  sold  under  a  judicial 
decree,  and  the  practitioner  who  is  about  to  sell  real  estate 
by  judicial  proceedings,  must  look  carefully  to  the  pleadings 
in  the  case  under  consideration.  He  must  be  sure  that  the 
petition,  if  filed  under  the  statute  for  sale,  states  a  cause  of 
action.     For  a  petition  failing  to  state  any  statutory  require- 

sLoring    v.    Illesey,    1     Cal.    27;  n  Xeedles    v.    Frost,    2    Okla.    19, 

Black  on  Judgments,   Sec.   1.  35   Pac.   74. 

9  Winton  v.  Cornish,  5  Ohio,  477.  ^-  Board    v.    Moon,    8    Okla,    205, 

loKinkead's    Practice,    Sec.    945;  57  Pac.   161. 
Freeman  on  Judgments,  Sec.  29. 


87  REAL   ESTATE   UNDER   EXECUTION. — JUDGMENT.  §  85 

ment,  or  authority  of  the  court,  will  avail  nothing  toward 
giving  the  purchaser  title.  Again,  the  court  can  pass  on  the 
issues  only  which  are  raised  by  the  pleadings;  for,  should 
the  court  go  outside  of  the  issues  in  the  case  and  determine 
some  question  not  raised  by  them,  the  decision  will  carry 
with  it  no  power  for  its  enforcement.  Even  a  judgment  of  a 
court  upon  a  subject  of  litigation  within  its  jurisdiction,  but 
not  brought  before  it  by  any  statement  or  claim  of  the  par- 
ties, is  a  void  judgment  and  may  be  collaterally  impeached.^^ 
Jurisdiction  is  the  right  to  adjudicate  concerning  the  sub- 
ject-matter of  a  given  case.  To  constitute  this  there  are  three 
essentials : 

(a)    The  court  must  have  cognizance  of  the  class  of  cases 
to  which  the   one   adjudicated  belongs. 
(h)    The  proper  parties  must  be  before  it. 
(c)    The   point   decided   must   be   in   substance   and   effect 
within  the  issue. 

That  a  court  cannot  go  outside  of  its  appointed  sphere, 
and  that  its  action  is  void  with  respect  to  persons  who  are 
strangers  to  its  proceedings,  are  propositions  established  by 
the  authorities." 

The  issues  must  state  a  cause  of  action  and  the  judgment 
cannot  go  outside  of  the  issues  made  up  by  the  pleadings, 
and  undertake  to  decide  matters  not  brought  into  the  case, 
but  this  rule  is  not  so  strict  as  to  require  the  petition,  or 
cross-petition,  as  the  case  may  be,  to  be  so  perfect  in 
form  and  substance  as  to  withstand  a  demurrer  interposed 
against  it.^^ 

13  Spoors  V.  Coen,  44  0.  S.  497;  Downer,  13  Wis.  11;  Black  on  Judg- 
Porterfield  v.  Bulter,  47  Miss.  156,  ments,  Sec.  184;  Koelsch  v.  Mixer, 
12  Am.  Eep.  329;  Armstrong  v.  52  0.  S.  207;  Southward  v.  Jame- 
Bartin,     42     Miss.     506;      Still     v.  son,  66  O.  S.  311. 

Palmer,  41  Miss.  89;  Black  on  Judg-  is  Kinkead's    Practice,    Sec.    807; 

ments,  Sec.   184;   Freeman  on  Judg-       Buchanan    v.    Roy,    2    0.    S.    253; 
ments.  Sec.  135a.  Shawkin  v.  City,  16  0.  S.   1. 

14  By    the    court    in    Monday    v. 
Vail,    33    N.    J.    L.    418;    Strobe   v. 


§  86  merwine's  trial  of  title  to  land.  88 

Sec.  86.     The  judgment  must  conform  to  the  verdict. 

When  a  trial  by  a  jury  has  been  had,  judgment  must  be 
entered  by  the  clerk  in  conformity  to  the  verdict,  unless  it 
is  special,  or  the  court  order  the  case  to  be  reserved  for 
future  argument   or  consideration.^'^ 

While  it  is  the  usual  practice  for  the  attorneys  to  prepare 
and  approve  the  judgments  of  the  court,  and  while  it  is  the 
practice  usually,  for  the  judge  to  sign  the  judgments  and 
decrees  of  the  court,  yet  these  are  only  for  the  assistance 
of  the  clerk  in  preparing  his  entries  for  the  court's  journal; 
and  in  a  case  where  the  clerk  accepts  and  records  a  judgment 
of  a  court  prepared  by  the  attorney  for  one  side  only,  and 
which  has  not  been  approved  by  opposing  counsel,  or  signed 
by  the  judge,  still  such  entry  on  the  journal,  is  the  judgment 
and  decree  of  the  court.  It  has  been  held  that  it  is  the  duty 
of  counsel  to  make  timely  examination  of  the  journals  of 
the  court  and  see  that  the  records  correctly  recite  the  pro- 
ceedings, and,  if  they  have  objection,  to  present  same  to  the 
court  by  proper  motion,  and  have  the  records  corrected  or 
have  omissions  supplied.^^ 


16  Snyder,  5,931;  Wilson,  4,598;  CPac.  626;  Atchison  v.  Cogswell, 
Kansas,  4,854  (1901),  identical;  23  Okla.  181,  99  Pac.  923.  It  was 
Nebraslca,  1,428   ( 1907),  identical.  held    in    a    case    tried    by    a    jury, 

17  Boynton  v.  Crockett,  12  Okla.  where  it  was  clearly  apparent  that 
57,  69  Pac.  869.  Wliere  the  verdict  the  prevailing  party  was  entitled  to 
of  the  jury  is  proper,  and  the  judg-  interest  upon  the  amount  found  in 
ment  is  irregular,  the  court  will  the  verdict,  and  it  was  unquestion- 
modify  the  judgment  to  conform  to  ably  clear  that  the  jury  allowed  no 
the  verdict  and  affirm  the  case.  interest,  or  where  the  court  reserved 
Morrison  v.  Knight,  7  Okla.  419,  the  question  of  the  allowance  of 
54  Pac.  656.  Where  the  verdict  of  interest  until  after  verdict,  and  it 
the  jury  is  one  that  can  properly  was  clearly  ascertainable  from  the 
be  returned  under  the  pleadings,  it  verdict  or  uncontroverted  facts  the 
was  not  error  for  the  covirt  to  date  from  which  and  to  which  in- 
render  judgment  thereon,  in  the  terest  should  be  allowed,  and  the 
absence  of  a  motion  for  judgment  rate  is  fixed,  that  the  court  could 
upon  the  special  finding  of  facts  make  the  computation  and  add  the 
returned  by  the  jury.  Carter  v.  interest  so  found  to  the  sum  found 
Missouri,  6  Okla.  11,  41  Pac.  356;  in  the  verdict  and  render  judgment 
Smith  v.  Eagle,   25    Okla.   408,   108 


89  REAL   ESTATE   UNDER   EXECUTION. JUDGMENT.  §  87 

Sec.  87.  Judgments  without  jurisdiction  of  the  parties  or  the 
subject-matter  are  void. 

In  the  examination  of  title  to  real  estate  sold  under  a 
judicial  decree,  one  of  the  most  important  inquiries  is,  has 
everyone  who  had  an  interest  in  the  property  at  the  time 
suit  was  begun  been  brought  into  the  case,  and,  if  so,  did  the 
court  make  the  proper  orders  necessary  to  divest  him  of 
his  title  thereto?  It  is  elementary  that  everyone  must  have 
his  day  in  court.  The  court  has  no  power  to  pass  on  anyone 's 
property  rights  without  giving  him  a  chance  to  be  heard. ^^ 

Any  order  made  as  to  the  rights  of  anyone  as  to  the  real 
estate  sought  to  be  sold  by  the  court,  though  made  as  to  a 
party  defendant  who  has  not  been  served  with  summons,  or 
who  has  not  entered  his  appearance  by  some  of  the  methods 
pointed  out  by  law,  is  void,  as  to  such  party,  and  he  can 
assert  his  rights  at  any  time  and  in  any  manner,  unless 
barred  by  limitation  of  time.  Counsel  conducting  any  pro- 
ceeding in  which  real  estate  is  sold  should  use  the  utmost 
diligence  in  searching  the  records  of  the  title  of  real  estate 
sought  to  be  sold,  in  order  to  secure  the  names  of  every 
lienholder,  whether  by  mortgage,  judgment,  mechanic's  lien, 
vendor's  lien,  attorney's  lien,  attachment  lien,  foreign  execu- 
tion lien  and  the  interest  of  anyone  in  the  title  thereto,  and 
every  such  person  holding  such  claim,  lien  or  interest  in  the 
title  thereto,  should  be  made  a  party  defendant  and  required 
to  set  forth  such  claim,  lien  or  interest.  The  petition  should 
ask  that  they  do  this  upon  penalty  of  having  their  lien  or 
interest  in  the  real  estate  forever  barred  by  order  of  court. 

V.    Oliver,    17    Okla.    419,    87    Pac.  it    is    error   to    enter   judgment   for 

423.     A  court  may  stay  a  judgment  such  amount  in  the  journal.     Davig 

until  motion  for  new  trial  is  heard.  v.    Hill,    97    X.    W.     (Xeb.)     1,023. 

Church    V.    Gooden,    22    Kan.    227;  Objection  to  the  form  of  the  verdict 

Barge  v.  Haslem,  91  X.  W.    (Xeb.)  should  be  made   at  the  itme  of  its 

528.     It  is  the  duty  of  the  clerk  to  rendition.      Parsons    v.    Gadeka,    95 

enter     judgment     on     the     journal.  X.  W.    (Xeb.)    850. 
Selders  v.   Boyd,   5   Kan.  App.   451,  is  Trimble  v.  Longworth,  13  0.  S. 

49  Pac.  320.     Where   the  verdict  is  438. 
for  more  than  the  amount  alleged. 


§  87  merwine's  trial  of  title  to  land,  90 

If  the  lien  or  interest  of  any  such  claimant  be  invalid,  the 
petition  in  such  ease,  should  so  allege,  else  such  interest,  in 
case  of  default  to  answer,  will  be  a  cloud  on  the  title  and 
will  frighten  away  purchasers  at  such  sale.'** 

After  such  persons  who  hold  any  interest  of  record,  or  not 
of  record,  in  said  real  estate,  if  the  plaintiff  has  had  notice 
of  their  interest,  have  been  made  parties  to  the  action,  the 
practitioner  must  have  each  of  them  served  in  the  manner 
appointed  by  law,  and  the  record  should  show  the  manner 
of  service.  Great  care  should  be  exercised  in  respect  of  the 
rights  of  infants,  and  insane,  or  other  defendant  under  guard- 
ianship. Service  of  summons  on  them  should  be  made  as 
required  by  the  statute.-'^  As  to  them,  if  the  statute  has  not 
been  followed,  their  rights  remain  in  the  real  estate  un- 
affected by  any  order  of  the  court,  and  unaffected  by  any 
judicial  sale  of  their  real  estate.  In  case  of  any  irregularity 
in  the  proceedings  there  is  no  presumption  to  aid  the  record. 

Again,  counsel,  should  see  to  it  that  the  court  in  which  he 
brings  his  action  has  jurisdiction  to  do  what  is  asked.  If 
the  court  has  no  jurisdiction  of  the  subject-matter,  then  the 
purchaser  of  the  real  estate  takes  no  title,  and  the  person 
or  persons,  whose  real  estate  is  sought  to  be  sold,  can,  at  any 
time,  take  possession  of  the  same.  The  order  of  the  court 
in  such  case  affords  no  protection.  A  judgment  of  a  court 
without  jurisdiction  is  an  absolute  nullity.^^ 

The  waiver  of  summons  and  entry  of  appearance  may  give 
the  court  jurisdiction  over  the  person  of  the  defendant,  but 

19  Strobe  v.  Downer,  13  Wis.  11;  21  Pennywit  v.  Foote,  27  0.  S. 
Southward  v.  Jameson,  66  0.  S.  600;  Spier  v.  Cordel,  33  0.  S.  236 
311;  Koelsch  v.  Mixer,  52  0.  S.  Gilliland  v.  Sellers,  2  0.  S.  223 
207;  Spoors  v.  Coen,  44  0.  S.  497;  Moore  v.  Starks,  1  0.  S.  369 
Black  on  Judgments,  Vol.  1,  Sec.  Fleischman  v.  Walker,  91  111.  318 
184;  Freeman  on  Judgments,  Vol.  1,  Santon  v.  Ballard,  133  Mass.  ^64 
Sec.  158.  St.  Louis  v.   Cola  Co.,   Ill   111.   32 

20  When  the  record  shows  affirm-  Weinmiller  v.  Laughlin,  5  0.  S 
atively  that  infants  were  not  served,  421 ;  Adams  v.  JeiTries,  12  Ohio, 
the  decree  as  to  them  is  void.  253. 
Moore  v.   Starks,   1   0.  S.  369. 


91  REAL  ESTATE   UNDER   EXECUTION. — JUDGMENT.  §  88 

cannot  give  the  court  jurisdiction  over  the  subject-matter 
over  which  the  court  is  not  authorized  to  exercise  its  juris- 
diction.-- 

It  has  been  well  said  by  the  Supreme  Court  of  this  State 
that  where  a  court  has  jurisdiction,  it  has  a  right  to  decide 
every  question  which  occurs  in  the  cause ;  and  whether  its 
decision  be  correct  or  otherwise,  its  judgment,  until  reversed, 
is  regarded  as  binding  in  every  other  court.  But  if  it  act 
without  authority,  its  judgments  and  orders  are  regarded  as 
nullities.  They  are  not  voidable,  but  simply  void;  and  form 
no  bar  to  a  recovery  sought,  even  prior  to  a  reversal  in 
opposition  to  them.  They  constitute  no  justification;  and 
all  persons  concerned  in  executing  such  judgments  or  sen- 
tences, are  considered,  in  law,  as  trespassers.  This  distinction 
runs  through  all  the  cases  on  this  subject;  and  it  proves  that 
the  jurisdiction  of  any  court  exercising  authority  over  a 
subject,  may  be  inquired  into  in  every  court,  when  the  pro- 
ceedings of  the  former  are  relied  on  and  brought  before  the 
latter  by  the  party  claiming  the  benefit  of  such  proceedings. 
The  principle  that  a  record  cannot  be  impeached  by  plead- 
ings is  not  applicable  where  there  is  want  of  jurisdiction. 
The  want  of  it  makes  a  record  utterly  void  and  unavailable 
for  any  purpose.  The  want  of  jurisdiction  is  a  matter  that 
may  always  be  set  up  against  a  judgment  when  it  is  to  be 
enforced,  or  when  any  benefit  is  claimed  under  it." 

Sec.  88.  Judgments  import  absolute  verity  and  cannot  be 
collaterally  attacked. 
When  a  court  has  jurisdiction  of  the  subject-matter  and 
the  parties,  and  the  case  is  made  by  the  pleadings,  its  judg- 
ment, however  erroneous,  is  binding  until  reversed,  and  such 
errors  are  not  available  on  collateral  attack  on  the  judg- 
ment.^* 

22Kinkead's    Practice,    Sec.    806;  Williamson  v.  Berry,  42  U.  S.  541, 

Gilliland  v.  Sellers,  2  0.  S.  223.  12  Fed.   1,170. 

23  Elliott  V.  Peirsol,  26  U.  S.  340,  =4  Hammond     v.     Davenport,      16 

7    L.    Ed.    164;    Hickey  v.    Stewart,  0.     S.     182;     Smith    v.    Finger,     15 

44     U.     S.    750,     11     L.     Ed.     814;  Okla.   120,   79   Pac.   759;   Mackee  v. 


§  89  merwine's  trial  of  title  to  land.  92 

Where  a  judgment  shows  a  finding  by  a  court  of  record 
of  personal  service,  the  judgment  cannot  be  collaterally  at- 
tacked.-^ 

A  direct  attack  on  a  judgment  is  one  by  which  the  judg- 
ment is  directly  assailed  by  some  method  authorized  by  law. 
A  collateral  attack  on  a  judgment  is  an  attempt  to  defeat 
the  operation  of  the  judgment  in  proceedings  where  some 
new  right  derived  from  or  through  the  judgment  is  involved.-^ 

Sec.  89.  Judgment  of  the  court  as  between  the  parties,  final. 
A  judgment  in  an  action  upon  the  merits  of  a  case  is 
final,  and  such  judgment  is  a  bar  to  a  second  suit  for  the 
same  cause,  and  when  a  matter  is  finally  determined  in  an 
action  between  the  same  parties  by  a  competent  tribunal, 
it  is  to  be  considered  at  an  end,  not  only  as  to  what  was 
determined,  but  also  as  to  every  other  question  that  the  par- 
ties might  have  litigated  in  the  case.  As  to  these  two  propo- 
sitions, decrees  in  chancery  stand  upon  the  same  footing  as 
judgments  in  law.^^ 

Purcell,    1   Ind.   Ty.   288,   37    S.    W.  under    it.       Houston    v.    Clark,    36 

55;     Thurston    v.    Washington,     18  Kan.  412,   13  Pac.   739. 
Okla.    362,    90    Pac.    16;    Gooden   v.  =5  Crist  v.    Crosby,    11    Okla.   635, 

Buffalo,    104    S.    W.    94;     Crist    v.  69  Pac.  885;  Wallace  v.  Adams,  143 

Crosby,   11   Okla.  635,   69   Pac.   885.  Fed.    Rep.    716,    74    C.    C.    A.    540; 

In  an  action  where  a  journal  entry  Plummer  v.  Wells,   6   Ind.  Ty.   189, 

shows     that     the     plaintiff     in     the  90  S.  W.  303. 

action  "moves  the  court  here  to  dis-  26  By  the  court  in  Kingsborough 
miss  the  action  without  prejudice  v.  Towsley,  56  0.  S.  458.  In  an 
to  a  future  action  at  the  cost  of  action  on  a  personal  judgment, 
the  plaintiff,  which  is  accordingly  whether  rendered  by  a  court  of  this 
done,"  and  afterward  an  execution  State  or  elsewhere,  it  is  competent 
is  issued,  to  recover  costs,  and  the  to  prove  in  defense,  though  it  be  in 
real  estate  of  the  plaintiff  is  levied  contradiction  of  the  record,  that 
on  and  sold  for  that  purpose,  and  the  defendant  was  not  served  with 
the  sale  confirmed  by  the  court,  a  process,  nor  jurisdiction  of  his  per- 
sheriff's  deed  executed,  and  the  pur-  son  otherwise  obtained  by  the  court 
chaser  takes  possession  of  the  real  rendering  the  judgment.  Such  de- 
estate,  held,  that  such  journal  entry  fense  is  not  a  collateral  attack  on 
is  a  sufficient  judgment  in  a  col-  the  judgment.  Ihid. 
lateral  attack  to  uphold  the  sheriff's  =7  Pratt  ,v.  Ratcliffe,  10  Okla. 
deed     and     the     other     proceedings  168,  61   Pac.   125;    Williamsburg  v. 


93  REAL   ESTATE   UNDER   EXECUTION. — JUDGMENT.  §  89 

Mr.  Freeman,  in  his  work  on  judgments,  puts  the  proposi- 
tions above  in  the  following  language : 

"Adjudication  is  final  and  conclusive,  not  only  as  to 
matters  actually  determined,  but  as  to  every  other  matter 
which  the  parties  might  have  litigated  and  have  decided  as 
incidental  to,  or  essentially  connected  with,  the  subject-matter 
of  the  litigation,  and  every  matter  coming  within  the  legiti- 
mate purview  of  the  original  action,  both  in  respect  to  mat- 
ters of  claim  and  defense."-^ 

This  principle  of  the  finality  of  a  judgment  is  known  as 
res  adjudicata.  It  has  been  said  as  a  familiar  rule  that  when 
a  matter  has  once  become  res  adjudicata,  there  shall  be  an 
end  to  the  question.*  The  reason  and  principle  upon  which 
this  rule  is  based  rest  upon  the  expediency  of  ending  the 
contention  of  the  parties  and  accomplishing  the  ends  of 
justice  by  a  single  speedy  decision  of  all  their  rights.  Again, 
"human  life  is  not  long  enough  to  allow  of  matters  once 
disposed  of  being  brought  under  discussion  again.  "^^  If 
the  rule  were  otherwise,  there  would  be  no  end  to  litigation ; 
for  the  judgment  would  finally  go  to  the  one  whose  money 
or   time   would   enable   him   to    exhaust   his   adversary.     All 


Towne,    32    N.    E.    1,058;     City    v.  Case  v.  Beauregard,  101  U.  S.  688 

West,    7    Wall.    82,    19    L.    Ed.    42;  Thomas    v.     Myriek,     24     Hun,     4 

Van   Renselaer  v.  Carney,    11   How-  Jacobsin    v.    Miller,    41    Mich.    90 

ard,  326,    13   L.   Ed.   715;    Hollister  Knight    v.    Atchison,    2    Tenn.    384. 

V.    Abbot,    31    N.    Hamp.    448,    64  *  Great    Northern    v.    Mosop,    17 

Am.  Dec.  342;  Randolph  v.  Hudson,  Com.  B.  140. 

12   Okla.   516,   74   Pac.   946;    Robey  29  Robey  v.  Rainsberger,  27  O.  S. 

V.  Rainsberger,  27  0.  S.  677;  Peter-  677;    Great  Northern  v.   Mosop,   17 

sine    V.     Thomas,     28     0.     S.     597;  Com.  B.   140;    Boswell  v.  Sharp,   15 

Covington    v.    Saergeant,    27    0.    S.  Ohio,    441;    Kingsbury   v.    Towsley, 

233;     Hinton    v.    McNeal,    5    Ohio,  56   0.   S.   450.     This   rule  seems  to 

509 ;  Bobcock  v.  Camp,  12  0.  S.  11;  have  been   adopted   from   right  and 

Loudenback  v.  Collins,  4  0.  S.  251 ;  necessity   to  give   confidence   to   the 

Welsch  V.   Childs,   17  O.   S.  319.  judicial  action  of  the  country,  and 

28  Freeman    on    Judgments,     Sec.  to    protect    those    who    have    made 

249;  Harris  v.  Harris,  36  Barb.  88;  purchases   on   the   faith   of  judicial 

59;    Burford    v.    Kursey,    48    Miss.  sales.      Boswell   v.   Sharp,   15    Ohio, 

643;   Bass  v.  Spooner,  45  Ind.  489;  441. 
Tusca   v.    O'Brien,    68    N.    Y.    446; 


§  90  merwine's  trial  op  title  to  land.  94 

judgments    of    the    court    in    Indian    cases    import    absolute 
verity,^" 

Sec.  90.     The  eflfect  of  the  finding  of  the  court  of  facts  giving 
it  power  to  enter  judgment. 
In  a  case  where  the  court  finds  and  states  in  the  judgment 
facts  giving  the  court  power  and  jurisdiction  to  enter  judg- 
ment and  decree,  such  finding  imports  absolute  verity  upon 
the  parties   and   the   privies,   and  while   such   finding  is  not 
reversed,  it  is  conclusive  of  the  matters  so  found.     A  judicial 
record,  judgment  or  decree  cannot  be  contradicted  by  parol, 
nor  is  the  truth  of  the  matters  therein  recited  open  to  in- 
vestigation.     Were   the   findings,   judgments   and   decrees   of 
the  court  open  to  investigation,  there  would  be  no  security 
for  the  innocent  purchasers  of  real  estate  at  a  judicial  sale. 
If  the  records  of  a  sale  of  real  estate  under  decree  of  the 
court,  did  not  import  absolute  verity,  then  every  purchaser 
of  real  estate,   under  decree  of  court,  would  be  required  to 
look  beyond  the  record  to  see  whether  the   clerks,   sheriffs, 
courts    and    attorneys    did    their    duty,    and    committed    no 
error,  and  that  each  had  power  to  do  the  various  things  set 
forth    in    the    record.      Such    a    condition    would    make    the 
pleadings  and  records  of  our  courts  on  judicial  sales  of  real 
estate,    no    protection    whatever,    and   would    be    a    snare    to 
innocent  purchasers.^^ 

aoBarbee  v.  Shannon,   1   Ind.  Ty.  judgments  and  decrees  are  accorded 

199,   40   S.  W.   584;    Mohlin   v.   Ice,  like  force  and  effect,  and  legal  pre- 

56   Fed.   Eep.    12,   5    C.    C.    A.   403;  sumption,    as    the    records,    orders, 

Stanley    v.    Roberts,    59    Fed.    Rep.  judgments    and   decrees   of   the   dis- 

836,   8   C.    C.    A.    305;    Boudinot   v.  trict   court.      Carmichael    v.    Pierce, 

Boudinot,  2  Ind.  Ty.  107,  48  S.  W.  10    Okla.    176,    61    Pac.    583;    Greer 

1,019.     Under    the    statutes   of   this  v.    McNeal,    11    Okla.    519,    69    Pac. 

territory,  proceedings  in  the  probate  891;   Ward  v.  Board,  12  Okla.  267, 

court,   when    exercising   jurisdiction  70  Pac.  378. 

concurrent  with  the  district  court  3i  Kallen  v.  Ellison,  13  0.  S.  455; 
are  considered  in  the  same  manner  Lessee  v.  Whitman,  2  0.  S.  270; 
and  with  like  intendment,  as  the  Moore  v.  Starks,  1  0.  S.  369;  Bos- 
proceedings  of  courts  of  general  well  v.  Sharp,  15  Ohio,  447; 
jurisdiction;  and  its  records,  orders,  Buchanan    vT    Roy,    2     0.    S.    261; 


95  REAL   ESTATE   UNDER   EXECUTION. — JUDGMENT.  §  91 

Sec.  91.     Effect  of  void  and  voidable  judgments. 

Judgments  are  either  voidable  or  void.  And  any  judgment, 
in  so  far  as  the  record  is  concerned,  and  in  so  far  as  it 
concerns  property  rights,  is  good,  valid  and  binding  until  it 
is  set  aside  by  the  court  in  an  action  brought  for  that  pur- 
pose. Voidable  judgments,  as  shown  above,  cannot  be  at- 
tacked collaterally.  This  principle  is  assuming  a  great  deal 
of  importance  in  the  courts  everyAvhere,  especially  as  to 
judicial  sale  of  real  estate.  Real  estate  sold  under  a  void- 
able judgment  or  decree,  gives  a  title  that  cannot  be  assailed 
except  by  some  method  given  by  statute,  to  reverse  the 
order  of  decree  or  judgment  in  the  case  in  which  the  real 
estate  was  sold.  The  statute  gives  the  right  to  prosecute 
error  for  the  reversal  or  setting  aside  of  a  judgment  within 
a  proper  time.  It  also  gives  any  aggrieved  party  the  right 
at  any  time  after  the  term  at  which  the  judgment  was  ren- 
dered, to  file  his  petition  to  vacate  and  set  aside  the  judgment 
for  any  grounds  mentioned  and  set  forth  in  the  statute.  In 
addition  to  these  methods,  a  judgment  or  decree  may  be  set 
aside  by  proceedings  in  equity .^- 

We  find  an  entirely  different  principle  applicable  to  void 
judgments.  A  void  judgment  is  subject  to  collateral  attack. 
If  a  judgment  is  void,  it  has  no  force  and  effect,  and  can  be 
assailed  in  any  action  by  anyone,  and  such  a  judgment  is 
void  anywhere  and  for  every  purpose.  A  purchaser  of  real 
estate  under  a  void  judgment  takes  no  title.^^ 

It  has  been  said  of  such  a  judgment : 

"A  void  judgment,  is  in  legal  effect,  no  judgment.  By  it 
no  rights  are  divested.  From  it  no  rights  can  be  obtained. 
Being  worthless  in  itself,  all  proceedings  founded  upon  it  are 

Richards    v.    Shiff.    S    0.    S.    589;  Moore    r.     Starks,     1     0.     S.    369 

Trimble     v.     Longworth,     13     0.     S.  Sheldon    v.    Newton,    3    0.    S.    494 

431.  Kallen    v.    Ellison,    13    O.    S.    455 

32  Kingsborough    v.    Towsley,    56  Speir    v.     Corval,     13     0.    S.    236 
0.   S.   962.  Weinmiller    v.    Laughlin,    51    0.    S. 

33  Kingsbo rough  v.  Towsley,  56  421;  McAlpine  v.  Festewald,  57 
O.  S.  450;  Ream  v.  Wools,  61  0.  S.  O.  S.  524;  Southward  v.  Jameson, 
131;   Spoors  v.  Coen,  44  0.  S.  497;  66  O.  S.  311. 


§  91  merwine's  trial  of  title  to  land.  96 

equally  worthless.  It  neither  binds  nor  bars  anyone.  All 
acts  performed  under  it,  all  claims  flowing  out  of  it,  are 
void.  All  parties  attempting  to  enforce  it  may  be  respon- 
sible as  trespassers.  A  purchaser  at  a  sale  by  virtue  of  its 
authority,  finds  himself  without  title  and  without  redress. 
The  first  most  material  inquiry  in  relation  to  a  judgment  or 
decree  then,  is  in  reference  to  its  validity.  For,  if  it  be  null, 
no  action  on  the  part  of  the  defendant,  no  resulting  equity 
in  the  hands  of  third  persons,  no  power  residing  in  any 
Legislature  or  other  department  of  the  Government  can 
invest  it  with  any  of  the  elements  of  power  or  vitality.  It 
does  not  terminate  or  discontinue  the  action  in  which  it  is 
entered,  nor  merge  the  cause  of  action ;  and  it,  therefore, 
cannot  prevent  the  plaintiff  from  proceeding  to  obtain  a 
valid  judgment  in  the  same  cause,  either  in  which  the  action 
in  which  the  void  judgment  was  given,  or  in  another  action.^* 

A  purchaser  at  a  judicial  sale  made  under  a  void  judgment 
cannot  sustain  his  title.  Title  to  real  estate  sold  under  a 
voidable  judgment  is  good  as  long  as  the  judgment  remains 
in  force. 

Another  distinction  between  void  and  voidable  judgments 
is  lack  of  power,  or  want  of  jurisdiction  in  the  court,  and  a 
wrongful  or  defective  execution  of  power.  In  the  first 
instance,  all  acts  of  a  court  not  having  jurisdiction  or  power, 
are  void,  in  the  latter,  voidable  only.  A  court  then,  may  act, 
first,  without  power  or  jurisdiction;  secondly,  having  power 
or  jurisdiction,  may  exercise  it  wrongfully;  or,  thirdly, 
irregularly.  In  the  first  instance,  the  act  or  judgment  of  the 
court  is  wholly  void,  and  is  as  though  it  had  not  been 
done.  Second,  is  wrong  and  must  be  reversed  on  error. 
Third,  is  irregular,  and  must  be  corrected  by  motion.^'^ 


3*  Freeman  on  Judgments,  Sec.  117.  laterally.    The  result  or  consequence 

ss  Lessee  v.  Loring,   17  0.  S.  423.  in  such  case  is  precisely  as  though 

If  the  judgment  or   decree  is  void,  no    such    judgment    or    decree    had 

the    land    itself   sold    to    satisfy    it  over   heen    rendered   or   pronounced, 

may   be   recovered    back,    and    such  If  a  judgment  or  decree  be  not  void, 

proceeding    may   be    impeached    col-  but    simply    erroneoiis,    subject    to 


97  REAL   ESTATE   UNDER   EXECUTION. — JUDGMENT.  §  92 

Sec.  92.     Void  judgments. 

Where  a  court  undertakes  to  enter  a  judgment  in  an 
amount  beyond  the  limits  of  its  jurisdiction,  the  judgment 
will  be  void,  and  where  the  terms  of  court  are,  under  the 
law,  fixed  at  stated  periods,  and  the  court  fails  to  convene 
at  the  time  so  fixed,  by  reason  thereof,  the  court  is  not 
legally  in  session,  and  the  parties  to  an  action  cannot,  by 
agreement,  confer  jurisdiction  upon  the  court  to  render  a 
judgment  binding  upon  the  parties.^'' 

It  has  been  held  that  where  a  service  by  publication  has 
been  made  without  an  affidavit  having  been  first  filed,  the 
service  is  void;  and  every  subsequent  proceeding  founded  on 
such  service,  including  the  judgment,  execution  or  order  of 
sale,  the  sale,  and  sheriff's  deed  must  necessarily  be  void." 

If  an  unauthorized  person  brings  an  action  in  the  name  of 
a  party  who  has  not  consented  thereto,  such  action  is  ficti- 
tious and  the  court  does  not  acquire  jurisdiction  of  the 
plaintiff  named,  or  of  the  subject-matter,  and  any  judgment 
rendered  in  such  proceedings,  is  void.^^ 

A  personal  judgment  rendered  against  a  defendant  without 
notice  is  void.^^  A  judgment  entered  on  a  lost  pleading  over 
the  objection  of  counsel  is  error.*° 

reversal  on  writ  of  error  or  review.  Kirkley  v.  Mining  Co.,  4  Colo.  117; 

the    consequences    are    wholly    dif  Francis  v.  Wells,  4  Colo.  274. 

ferent.      They    must    be    impeached  37  Romig    v.     Gillette,     10     Okla. 

directly    and    cannot    be    questioned  186,  62  Pac.  807;  Harris  v.  Claplin, 

collaterally;     and    on    reversal    the  36   Kan.   543,  13   Pac.  830;    Grouch 

defendant  shall  have  restitution  in  v.  Martin,  47  Kan.  313,  27  Pac.  985. 

money  against  the  plaintiff  and  pur-  38  Southern  v.  Ward,  16  Okla.  131, 

chaser  holding  the  land  or  property  85  Pac.  459. 

acquired  by   sale   under   such   judg-  39  McXeal  v.  Eddy,  24  Kan.   108; 

ment  or   decree,   undisturbed.     Bos-  Romig    v.    Gillette,    10    Okla.    186, 

well  V.  Sharp,  15  Ohio,  447.  62   Pac.   805.      A  judgment  for   ali- 

36  American    v.    Pappe,     4    Okla.  mony,   when   the   court   was   closed. 

110,  43  Pac.   1,085;    Earls  v.  Earls,  and  the  judge  out  of  the  county,  is 

27    Kan.    538;    Galusha    v.    Butter-  erroneous,   and,    on   appeal,   will  be 

field,  2  Scam.  227;   Bahm  v.  Xunn,  held  to  be  void.     Packard  v.  Pack- 

63  la.  641,  19  K  W.  810;  Laughlin  ard,  34  Kan.  53,  7  Pac.  628. 

V.  Peckham,    66  la.   121,  23  N.  W.  4o  Grimson   v.   Eussell,    9    N".    W. 

294;    Filley  v.    Cody,   4   Colo.   109;  (Neb.)    647. 


§§93,94  merwine's  trial  of  title  to  land.  98 

Sec.  93.  Judgment  may  determine  ultimate  right  of  parties — 
Judgment  may  be  rendered  against  one  or  more 
parties. 

Judgment  may  be  given  for  or  against  one  or  more  of 
several  plaintiffs,  and  for  or  against  one  or  more  of  several 
defendants;  it  may  determine  the  ultimate  rights  of  the  par- 
ties on  either  side,  as  between  themselves,  and  it  may  grant 
to  the  defendant  any  affirmative  relief  to  which  he  may  be 
entitled.  In  an  action  against  several  defendants,  the  court 
may,  in  its  discretion,  render  judgment  against  one  or  more 
of  them,  leaving  the  action  to  proceed  against  the  others, 
whenever  a  several  judgment  may  be  proper.  The  court 
may  also  dismiss  the  petition  with  costs,  in  favor  of  one 
or  more  defendants,  in  case  of  unreasonable  neglect  on  the 
part  of  plaintiff  to  serve  summons  on  the  other  defendants, 
or  proceed  in  the  cause  against  the  defendant  or  defendants 
served.*^ 

Sec.  94.    Dismissal  of  an  action  without  prejudice. 

An  action  may  be  dismissed  without  prejudice  to  a  future 
action : 

First.  By  the  plaintiff  before  the  final  submission  of  the 
case  to  the  jury,  or  to  the  court,  where  the  trial  is  by  the 
court. 

Second.  By  the  court,  where  the  plaintiff  fails  to  appear 
on  the  trial. 


41  Snyder,    5,917;    Wilson,    4,584;  755;  Ryan  v.  State,  7  X.  W.   (Xeb.) 

Kansas,     4,845      (1901),     identical:  27G;    Smith  v.  Bank,  26  0.  S.   141 

Xelsraska,    1,414    (1907),    identical;  Lampkin  v.   Chisom,    10  0.  S.   451 

Ohio   Gen.    Code,    Sees.    11,583    and  Smitliers  v.  Rainey,    14   O.   S.   287 

11,584     (1910),     identical;     Outcalt  Robey     v.     Ramsberger,     27     O.     S. 

V.    Collins,    8    Okla.    473,    58    Pac.  674;     Humphreys    v.    Huffman,     33 

642;    Schie   v.    Schie,    6    Kan.    App.  0.    S.    395:    Meade   v.    McGrow,    19 

136,     (50     Pac.     903;      School     Dist.  0.   S.  55;   King  v.  Bishop,  44   O.   S, 

V.     Koontze,      92      X".     W.      (X"eb.)  221;    Mason  v.  Alexander,  44   0.  S. 

597;    Rogencamp   v.  Heargraves,   58  334;    Aucker   v.    Adams,    23    0.    S. 

X.  W.    (Xeb.)    162;    Southerland  v.  543;    Hempy   v.   Ransom,   23    0.    S. 

Holiday,    90    X.    W.     (Xeb.)     937;  312. 
Lamb  v.  Gregory,  11  N,  W.   (Neb.) 


99  REAL   ESTATE   UNDER   EXECUTION. — JUDGMENT.  §  95 

Third.    By  the  court,  for  want  of  necessary  parties. 

Fourth.  By  the  court,  on  the  application  of  some  of  the 
defendants,  where  there  are  others  whom  the  plaintiff  fails 
to  prosecute  with  diligence. 

Fifth.  By  the  court,  for  the  disobedience  by  the  plaintiff 
of  an  order  concerning  the  proceedings  in  the  action. 

Sixth.  In  all  other  cases  upon  the  trial  of  an  action,  the 
decision  must  be  upon  the  merits.*- 

Sec.  95.    Plaintiff  may  dismiss  certain  actions. 

A  plaintiff  may,  on  the  payment  of  costs,  and  without  an 
order  of  court,  dismiss  any  civil  action  brought  by  him,  at 
any  time  before  a  petition  of  intervention,  or  answer  praying 
for  affirmative  relief  against  him  is  filed  in  the  action.  A 
plaintiff  may,  at  any  time  before  the  trial  is  commenced,  on 
payment  of  costs,  and  without  any  order  of  court,  dismiss 
his  action  after  the  filing  of  a  petition  of  intervention  or 
answer  praying  for  affirmative  relief,  but  such  dismissal 
will  not  prejudice  the  right  of  the  intervenor  or  defendant, 
to  proceed  with  the  action.  Any  defendant  or  intervenor 
may,  in  like  manner,  dismiss  his  action  against  a  plaintiff, 
without  an  order  of  court,  at  any  time  before  the  trial  is 
begun,  on  payment  of  costs  made  on  the  claim  filed  by  him. 
All  parties  to  a  civil  action  may,  at  any  time,  before  trial, 
without    an    order    of    court,    and    on   payment    of    costs,    by 


42  Snyder,    5,918;    Wilson,    4,585;  77   Kan.    273,    94   Pac.    130;    Luton 

Kansas,     4,846     (1901),     identical;  v.   Cooper,   106   N.   W.    (Neb.)    170; 

Nebraska,    1,419    (1907),    identical;  Thornbill   v.   Hargraves,    107   N.  W. 

Wyman  v.   Herrard,   9   Okla.   35,  50  (Xeb.)      847;     Bill     v.     Dalton,     93 

Pac.     1,009;     Hove    v.    Parker,     18  X.  W.   (Xeb.)   930;  Horton  v.  State, 

Okla.  282,   90  Pac.   15;    Aultman  v.  88    X.    W.    (Xeb.)     146;    Chaney    v. 

•Caldwell,  14  Okla.  472,  78  Pac.  319;  Cooper,     16     X.     W.     (Xeb.)      471; 

Dickerman   v.    Crane,   41    Kan.    150,  Grimes    v.    Chamberlain,    43    N.    W. 

21  Pac.   107;  National  v.  Crane,  50  (Xeb.)    395;   Beales  v.  Western,  74 

Kan.    49,    31    Pac.   082;    Kansas   v.  N.  W.    (Xeb.)    54;   Boyd  v.  Munson, 

Walker,  50  Kan.  739,  32  Pac.  365;  76    X.    W.     (Xeb.)     552;    Houck    v. 

Pugsley   V.    Chicago,    69    Kan.    599,  Lumm,  77  N.  W.   (Neb.)   51. 
77   Pac.    579;    Wilkerson   v.   Mears, 


§§96,97  mebwine's  trial,  of  title  to  land.  100 

agreement,  dismiss  the  action.  Such  dismissal  is  required  to 
be  in  writing  and  signed  by  the  party,  or  his  attorney,  and 
must  be  filed  with  the  clerk  of  the  district  court,  the  judge 
or  clerk  of  the  county  court,  or  the  justice,  where  the  action 
is  pending,  who  must  note  the  fact  on  the  proper  record : 
Provided,  such  dismissal  will  be  held  to  be  without  prejudice, 
unless  the  words,  "with  prejudice,"  be   expressed  therein." 

Sec.  96.  Dismissal  may  not  affect  set-off  or  counterclaim, 
when. 
In  any  action  where  a  set-off  or  counterclaim  has  been 
presented,  the  defendant  will  have  the  right  of  proceeding  to 
the  trial  on  his  claim,  although  the  plaintiff  may  have  dis- 
missed his  action,  or  failed  to  appear.** 

Sec.  97.  The  judgment  in  an  action  to  enforce  a  mortgage 
or  other  lien — The  order  of  sale. 
In  actions  to  enforce  a  mortgage,  deed  of  trust,  or  other 
lien  or  charge,  a  personal  judgment,  or  judgments,  shall  be 
rendered  for  the  amount,  or  amounts  due,  as  well  to  the 
plaintiff  as  the  other  parties  to  the  action  having  liens  on 
the  mortgaged  premises,  by  mortgage  or  otherwise,  with 
interest  thereon,  and  for  the  sale  of  the  property  charged, 
and  the  application  of  the  proceeds,  or  such  application  may 
be  reserved  for  the  further  order  of  the  court;  and  the  court 
is  required  to  tax  the  costs,  attorneys'  fees,  and  expenses 
which  may  accrue  in  the  action,  and  apportion  the  same 
among  the  parties,  according  to  their  respective  interests,  to 
be  collected  on  the  order  of  sale  or  sales,  issued  thereon; 
when  the  same  mortgage  embraces  separate  tracts  of  lands 
situated  in  two  or  more  counties,  the  sheriff  of  each  county 
is  required  to  make  sale  of  the  lands  situated  in  the  county 

43  Snyder,  5,919;   Wilson,  4,586.  Pac.    1,009;    Venable    v.    Dutch,    37 


44  Snyder,  5,921;  Wilson,  4.587 
Kansas,  4,847  (1901),  identical 
Nebraska,    1,421     (1907),    identical 


Kan.  515,  15  Pac.  520;  Corlette 
V.  Mutual,  60  Kan.  134,  55  Pac. 
844;    Amos   v.    Humboldt,    21    Kan. 


Wyman  v.  Harrard,  9  Okla.  35,  59       474. 


101  REAL   ESTATE   UNDER   EXECUTION. — JUDGMENT.      §§98,99 

of  which  he  is  sheriff.  No  real  estate  can  be  sold  for  the 
payment  of  any  money,  or  performance  of  any  contract,  or 
agreement,  in  writing,  in  security  for  which  it  may  be  pledged 
or  assigned,  except  in  pursuance  of  a  judgment  of  a  court 
of  competent  jurisdiction,  ordering  such  sale.*^ 

Sec.  98.  Judgment  ordering  conveyance — By  whom  and  how 
secured. 
When  a  judgment  is  rendered  for  a  conveyance,  release  or 
acquittance,  in  any  court  of  this  State,  and  the  party  against 
whom  the  judgment  is  rendered,  does  not  comply  therewith 
by  the  time  appointed,  such  judgment  will  have  the  same 
operation  and  effect,  and  be  as  available  as  if  the  conveyance, 
release  or  acquittance  had  been  executed  conformably  to  such 
judgment;  or  the  court  may  order  such  conveyance,  release 
or  acquittance  to  be  executed  in  the  first  instance  by  the 
sheriff;  and  such  conveyance,  release  or  acquittance,  so  ex- 
ecuted, shall  have  the  same  effect  as  if  executed  by  the  party 
against  whom  the  judgment  was  rendered.  This  paragraph 
applies  to  decrees  rendered  or  to  be  rendered  in  suits  now 
pending.^" 

Sec.  99.  Judgment — Failure  to  answer — Court  may  take  an 
account. 
If  the  taking  of  an  account  or  proof  of  a  fact,  or  assess- 
ment of  damages,  be  necessary  to  enable  the  court  to  pro- 
nounce judgment  upon  a  failure  to  answer,  or  after  the 
decision  of  an  issue  of  law,  the  court  may,  with  the  assent 
of  the  party  not  in  default,  take  an  account,  hear  the  proof, 
or  assess  the  damages;  or  may,  with  like  assent,  refer  the 
same  to  a  referee  or  master  commissioner,  or  direct  the  same 
to  be  ascertained  or  assessed  by  a  jury ;  if  a  jury  be  ordered, 

45  Snyder,    5,921;    Wilson,    4,588;  4G  Snyder,    5,922;    Wilson,    4,589; 

Kansas,     4,848      (1901),     identical.       Kansas,     4,849      (1901).      identical. 
See  chapter  on  Foreclosure  of  Mort-       See    chapter    on    Specific    Perform- 


gages. 


ance. 


§§100,101  merwixe's  trial  of  title  to  land. 


102 


it  will  be  on  and  after  the  day  on  which  the  action  is  set 
for  trial/^ 

Sec.  100.    Judgment  by  confession. 

Any  person  indebted,  or  against  whom  a  cause  of  action 
exists,  may  personally  appear  in  a  court  of  competent  juris- 
diction, and  with  the  assent  of  the  creditor,  or  person  having 
such  cause  of  action,  confess  judgment  therefor ;  whereupon 
judgment  shall  be  entered  accordingly.*^ 

Sec.  101.    Judgment  confessed  by  warrant  of  attorney. 

Judgments  may  be  entered  upon  confession  by  an  attorney, 
authorized  for  that  purpose  by  warrant  of  attorney,  acknowl- 
edged or  proved  as  conveyances  of  land,  without  any  previous 
process  or  proceeding;  and  judgment  so  entered  will  be  a 
lien  from  the  date  of  entry.'*^ 


47  Snyder.  5,023;  Wilson.  4,500; 
Kansas,  2,202  (ISSO),  identical; 
iN'ebraska,  1,422  (1907),  identical. 
It  is  error  to  take  judgment  for 
damages  without  proof.  City  v. 
Harvey,  5  Okla.  754,  50  Pac.  84. 
A  party  is  not  'n  default  who  has 
filed  some  pleading  requiring  proof. 
Milliken  v.  Booth,  4  Okla.  713,  46 
Pac.  489.  An  application  to  open 
a  judgment,  and  leave  to  answer, 
must  be  accompanied  by  the  answer 
setting  up  a  meritorious  defense. 
McBrien  v.  Riley,  57  N.  W.  (Neb.) 
388.  And,  in  addition  thereto,  he 
must  give  satisfactory  excuse  for 
his  default.  Childs  v.  Ferguson, 
93  X.  W.  (Xeb.)  409.  Failure  to 
answer  confesses  every  material 
allegation  in  the  pleading  to  be 
answered.  Pratt  v.  Hartschuflf,  lOli 
X.  W.  966.  Where  an  answer  is 
filed,  and  the  answer  fails,  proof  is 
required.  First  v.  Merc.  Co.,  110 
N.   W.    1,006.     If   any   defendant   is 


in  default,  judgment  should  be 
taken  as  to  him,  even  if  the  other 
defendants  are  not  in  default. 
German  v.  Stickle,  SO  X.  W^  (Xeb.) 
409. 

48  Snyder,  5.924:  Wilson,  4,591; 
Kansas,  4,851  (1901),  identical; 
Xebraska,  1,423  (1007),  identical; 
Maryland  v.  Bank,  107  X.  W. 
(Xeb.)  662;  Thornhill  v.  Har- 
graves,  107  X.  W.  (Xeb.)  847; 
Flannigan  v.  Continental,  34  X.  W. 
(Xeb.)  307;  Dolen  v.  Buchanan,  62 
X.  W.  (Xeb.)  233.  Must  be  made 
in  open  court.  Xifflin  v.  Stalker, 
4  Kan.  242.  A  director  of  a  school 
district  may  not  confess  judgment 
for  his  district.  Moore  v.  School, 
11    Okla.   332,    66    Pac.    279. 

49  Snyder,  5,925;  Wilson,  4,592; 
Kansas,  4,852  (1901),  identical; 
Xebraska,  1,423  (1907),  similar.  A 
judgment  cannot  be  confessed  ex- 
cept under  the  terms  of  this  stat- 
ute.     Harney.    Cole,    20    Okla.    553, 


103  REAL   ESTATE    UNDER   EXECUTION. — JUDGMENT.      §§  102-106 

Sec.  102.     Cause  of  action  must  be  stated  briefly  in  judgment. 

The  debt  or  cause  of  action  must  be  stated  briefly  in  the 
judgment,  or  writing  to  be  filed  as  pleadings  in  other  ac- 
tions.^^ 

Sec.  103.     Affidavit  must  be  filed  before  judgment. 

Before  any  judgment  may  be  entered  by  confession,  an 
affidavit  of  the  plaintiff  must  be  filed,  stating  concisely  the 
facts  upon  which  the  indebtedness  arose,  and  that  the  amount 
of  said  indebtedness  is  justly  due  and  owing  by  the  defendant 
to  the  plaintiff.^^ 

Sec.   104.     Judgment  by  confession  enforced  as  other  judg- 
ments. 

Such  judgment  will  authorize  the  same  proceedings  for 
its  enforcement  as  judgments  rendered  in  actions  regularly 
brought  and  prosecuted;  and  the  confession  will  operate  as  a 
release  of  errors.^- 

Sec.  105.     Warrant  confessing  judgment  to  be  filed. 

Every  attorney,  who  confesses  judgment  in  any  case,  is  re- 
quired, at  the  time  of  making  such  confession,  to  produce  a 
warrant  of  attorney  for  making  the  same,  to  the  court  before 
which  he  makes  the  confession,  and  the  original,  or  a  copy  of 
the  warrant,  must  be  filed  with  the  clerk  of  the  court  in  which 
the  judgment  is  entered.^^ 

Sec.  106.     Confession  of  judgment  by  prisoner. 

If  any  person  be  in  custody  in  a  civil  action  at  the  suit  of 
another,  no  warrant  of  attorney,  executed  by  the  person  in 
custody,  to  confess  judgment  in  favor  of  the  person  at  whose 

95    Pac.    41.5;     McCrairy    v.    Ware,  so  Snyder,    5,926;    Wilson,    4,593; 

58  Kan.  797,  51   Pac.  293.     County       Harn  v.  Cole,  20  Okla.  553,  95  Pac. 
attorney    has    no    power    to    confess       415. 

judgment    against    county.      Custer  ^i  Snyder,  5,927 ;   Wilson,  5,494. 

V.   Chicago,   87   N.  W.    (Neb.)    341.  52  Snyder,  5,928;   Wilson,  4,595. 

B3  Snyder,  5,929 ;  Wilson,  4,596. 


§§  107-111  merwine's  trial  op  title  to  land.  104 

suit  he  is  in  custody,  will  be  of  any  force,  unless  some  attor- 
ney expressly  named  by  the  person  in  custody,  be  present 
and  sign  the  warrant  of  attorney  as  a  witness.^* 

Sec.  107.     Judgment  must  conform  to  the  verdict. 

When  a  trial  by  jury  has  been  had,  judgment  must  be 
entered  by  the  clerk  in  conformity  to  the  verdict,  unless  it 
is  special,  or  the  court  order  the  case  to  be  reserved  for 
future  argument  or  consideration.^^ 

Sec.  108.    Judgment  on  special  verdict. 

Where  the  verdict  is  special,  or  where  there  has  been  a 
special  finding  on  particular  questions  of  fact,  or  where  the 
court  has  ordered  the  case  to  be  reserved,  it  must  order  what 
judgment  shall  be  entered.^'' 

Sec.  109.     Judgment  notwithstanding  the  verdict. 

Where  upon  the  statement  in  the  pleadings,  one  party  is 
entitled  by  law  to  judgment  in  his  favor,  judgment  shall  be 
so  rendered  by  the  court,  though  a  verdict  has  been  found 
against  such  party.^^ 

Sec.  110.  Judgment  where  counterclaim  or  set-off  exceeds 
plaintiff's  claim. 
If  a  counterclaim  or  set-off,  established  at  the  trial,  exceed 
the  plaintiff's  claim  so  established,  judgment  for  the  def en- 
ant  must  be  given  for  the  excess ;  or  if  it  appear  that  the 
defendant  is  entitled  to  any  affirmative  relief,  judgment  must 
be  given  therefor.^^ 

Sec.  111.     Judgment  on  the  pleadings. 

The  Supreme  Court  of  our  State,  in  discussing  this  subject, 
has  said  that  it  is  a  form  of  judgment  not  infrequently  used 

54  Snyder,  5.930;   Wilson,  4,597.  56  Snyder,  5,932;  Wilson.  4,599. 

55  Snyder,  5,931;  Wilson,  4,598;  57  Snyder,  5,933;  Wilson,  4,600. 
Kansas,  4,858  (1901),  identical;  58  Snyder,  5,934;  Wilson,  4,602. 
(Nebraska,  1,428   (1907),  identical. 


105 


REAL   ESTATE   UNDER   EXECUTION. — JUDGMENT. 


ni2 


in  practice  under  reformed  codes  of  procedure.  It  is  ren- 
dered on  motion  of  the  plaintiff,  when  the  answer  admits  or 
leaves  undenied  all  the  material  facts  stated  in  the  com- 
plaint; before  such  a  judgment  can  be  given  where  the 
pleadings  of  defendant  set  up  a  substantial  and  issuable 
defense,  or  where  suit  is  for  unliquidated  damages,  and  the 
answer  states  matters  in  mitigation.  And,  say  the  authori- 
ties in  consideration  thereof,  the  pleadings  objected  to  will  be 
liberally  construed,  and  the  motion  will  be  denied  where 
there  is  any  reasonable  doubt  as  to  their  insufficiency.^^ 

Sec.  112,     Judgments  concerning  infants  set  aside,  when. 

It  is  not  necessary  to  reserve  in  a  judgment,  or  order,  the 
right  of  an  infant  to  show  cause  against  it  after  his  attaining 
full  age;  but  in  any  case  in  which,  but  for  this  section,  such 
reservation  would  have  been  proper,  the  infant,  within  one 


59  Cobb  V.  Kenefick,  23  Okla.  440, 
100  Pac.  545;  McAlister  v.  Welker, 
39  Minn.  535,  41  X.  W.  107;  Kelly 
V.  Rogers,  21  Minn.  146;  Giles  v. 
Recamier,  14  Daley  (X.  Y.),  475; 
Malone  v.  Minn.,  36  Minn.  335,  31 
N.  W.  170;  Hutchinson  v.  Myers, 
52  Kan.  290,  35  Pac.  732;  Black 
on  Judgments,  See.  15.  The  mo- 
tion will  be  denied  where  any 
or  all  of  the  pleadings,  together, 
show  that  the  plaintiff  is  entitled 
to  some  relief.  Hawkins  v.  Over- 
street,  7  Okla.  277,  54  Pac.  472; 
McCormick  v.  Coch,  8  Okla.  374, 
58  Pac.  626.  ^Yhere  the  essential 
averments  of  a  petition  for  com- 
mission earned  as  a  real  estate 
broker  are  the  contract  of  employ- 
ment and  a  full  compliance  with 
the  terms  thereof,  and  the  answer, 
after  a  general  denial,  recognizes 
the  procurement  of  a  purchaser  by 
the  plaintiff  for  the   land   in  ques- 


tion, and  an  acceptance  of  the  pur- 
chaser by  the  landowner,  and 
discloses  further  the  execution  of 
a  binding,  valid  and  enforceable 
contract  of  sale  between  the  two 
and  an  agreement  to  compensate 
the  brokers  in  accordance  with  the 
terms  of  sale;  held,  that  in  such 
case,  a  motion  by  plaintiffs  for 
judgment  on  the  pleadings  was 
properly  sustained,  and  the  trial 
court  committed  no  error  in  ren- 
dering judgment  for  plaintiffs 
thereon.  Yoder  v.  Randol,  16  Okla. 
308,  83  Pac.  537,  3  L.  R.  A.,  X.S., 
576.  As  to  when  judgment  should 
be  given  to  defendant  on  the  plead- 
ings, see  St.  Louis  v.  Phillips,  17 
Okla.  264,  87  Pac.  420.  As  to 
when  the  court  should  either  sus- 
tain motion  of  defendant  for  judg- 
ment on  the  pleadings  or  rule 
plaintiff  to  reply,  see  Brown  v. 
Massey,   19  Okla.  482,  92  Pac.  246. 


§§  113, 114  mebwine's  trial  of  title  to  land.  106 

year  after  arriving  at  the  age  of  twenty-one  years,  may  show 
cause  against  such  order  or  judgment.'"' 

The  statute  does  not  give  an  infant  absolute  right  to  set 
aside  a  judgment;  it  only  gives  him  the  right  to  show  cause 
why  the  judgment  should  be  set  aside.®^ 

Sec.  113.  Judgments  in  district  court  on  cases  appealed  from 
the  county  court. 
When  a  final  judgment  has  been  rendered  against  an  ap- 
pellant in  the  district  court  in  an  action  appealed  from  the 
county  court,  or  justice's  court,  under  the  provisions  for 
appeals  from  said  courts,  the  court,  on  motion  of  the  appellee, 
or  any  other  person  having  an  interest  in  such  judgment,  or 
right  to  any  part  of  the  costs  in  such  action,  after  ten  days' 
notice  of  said  motion,  to  be  served  on  appellant  by  copy 
delivered  to  him,  may  enter  up  judgment  in  the  name  of  the 
appellee,  or  his  legal  representatives,  against  the  surety  or 
sureties  on  the  appeal  bond  of  the  appellant,  for  the  amount 
of  such  judgment  and  costs,  which,  by  the  terms  thereof,  the 
appellant  may  be  required  to  pay.  Execution  may  be  issued 
on  such  judgment  as  in  other  cases,  for  the  use  and  benefit 
of  the  successful  party,  or  any  person  interested  in  such 
judgment,  or  in  costs  of  such  action.  In  case  the  bondsmen 
appeal  from  the  judgment  entered  upon  such  motion,  execu- 
tion therein  will  be  stayed  for  sixty  days.*'^ 

Sec.  114.     Judgment  and  orders  to  be  entered  on  journal. 

All  judgments  and  orders  must  be  entered  on  the  journal 
of  the  court,  and  specify  clearly  the  relief  granted  or  order 
made  in  the  action.''^ 

60  Snyder,    5,935;    Wilson,    4.602;  11,603     (1910),    identical;    Long   v. 
Kansas,      4,862       (1901),      similar;  Mufford,     17     0.    S.    484;     Caiy    v. 
Nebraska,    1,432    (1907),    identical;  Kemper,  45  O.   S.  96. 
Delashmutt  v.  Parent,  39  Kan.  548,  62  Act     of     February     26,     1895; 
18    Pac.   712;    Claypool   v.    Houston,  Wilson,  5,056. 

12  Kan.  324 ;  McCraire  V.  Creighton,  63  Snyder,    5,936;    Wilson,    4,603; 

107    N.    W.     (Neb.)     240;    Starr    v.       Kansas,     4,863      (1901),     identical; 
Watkins,  11  N.  W.    (Neb.)    363.  Nebraska,    1,423     (1907),    identical. 

61  Manfull   V.   Graham,   76   N.   W. 
(Neb.)     19;    Ohio    Gen.    Code,    Sec. 


107  REAL   ESTATE    UNDER   EXECUTION. — JUDGMENT.  §  114 

The  failure  of  the  clerk  or  recording  officer  to  make  a 
correct  record  does  not  vitiate  the  proceedings  in  a  court  of 
record.  The  court  may,  at  any  time  during  the  term,  at 
which  the  proceeding  is  had,  correct,  amend  or  supply  omis- 
sions to  make  the  record  speak  the  truth.  Such  records,  when 
so  corrected,  relate  to  the  time  when  the  proceedings  were  in 
fact  had.*** 

On  proper  application  and  notice,  the  court  may,  by  nunc 
pro  tunc  order,  cause  its  records  to  speak  the  truth  and  be 
amended  so  as  to  record  any  part  of  the  proceedings  had  in 
any  cause  which,  by  inadvertence  or  mistake,  the  clerk  has 
omitted  to  report. ^'^ 

A  person  interested  in  a  proceeding  of  a  court  of  record 
may  appear  before  the  court  at  any  time,  and  ask  to  have 
the  journal  made  correct  and  complete  as  of  the  date  such 
record  should  have  been  made,  and  the  court  should  enter- 
tain and  hear  such  motion  upon  notice  to  those  adversely 
interested.  Where  the  default  was  that  of  the  court  or  its 
officers,  it  is  the  duty  of  the  court  to  make  its  record  com- 
plete at  any  subsequent  date  when  the  default  is  called  to  its 
attention  without  the  formality  of  a  motion.*"^ 


64  Ex    parte    Cook,    2    Okla.    Cr.  for    the     amount     of    the    verdict, 

684,   103  Pac.   1,041.  unless    otherwise     directed     by    the 

6">  In   re  McQuown,    19    Okla.    347,  court;     and,    if    he    fails    so    to    do, 

91  Pac.  689.  he  may  thereafter   enter   the   same, 

66  Board  v.  Kansas,  19  Okla.  375,  the  form  thereof  being  approved  by 

91    Pac.    699.      The    minutes    from  the  court,  without  notice  to  the  de- 

which    the    judgment    is    made    up,  fendant,    at    any    time    before    the 

and    even    the    judgment    and    any  rights  or  interests  of  third  persons 

paper   signed   by    a    master    are   not  intervene  which  may  be  affected  by 

properly     evidence     of     the     record.  such  entry  without  notice.     Selders 

Cockrell   v.   Schmidt,   20   Okla.    297,  v.  Boyle,  5  Kan.  App.  504,  49  "Pac. 

94  Pac.   521.     In  an   action  upon   a  320;    see,  also,   Pleasant  v.  Shawgo^ 

promissory    note,    tried    to    a    jury,  54  Kan.  732,   39   Pac.   704;    Church 

and   in  which   the   jury   returned   a  v.   Gooden,  22   Kan.    527 ;    Franklin 

verdict   for   the  plaintiff   for   a   cer-  v.    Mereda,   50    Cal.   293;    Young   v. 

tain  amount,   it  is  the   duty  of  the  Shellenberger,     41     N.     E.      (Ohio), 

clerk,    under    the    provisions    of   the  518.      In   order  to   create   a   lien   on 

code,    to    immediately    enter    judg-  the     real     estate     of     a     judgment 

ment  upon  the  journal  of  the  court  debtor,      the     judgment     must     be 


§§  115-117  merwine's  trial  of  title  to  land.  108 

The  court,  at  all  times  during  the  terra,  and  at  any  time 
during  a  subsequent  term,  has  power  to  make  its  journal 
speak  the  truth.  If,  by  mistake  or  fraud,  a  judgment  is 
entered  when,  in  fact,  no  judgment  was  granted  or  allowed, 
the  court  has  full  power  to  correct  the  record  so  it  may  show 
the  real  action  of  the  court  as  to  the  same.  The  court  may 
do  this  of  its  own  motion  or  on  application  of  a  party  in- 
terested."^ 

Sec.  115.    The  clerk  to  make  complete  record  in  case,  when. 
The  clerk  is  required  to  make  a  complete  record  of  every 
cause  as  soon  as  it  is  finally  determined,  whenever  such  record 
shall  be  ordered  by  the  court."* 

Sec.  116.    Judge  may  sign  record  at  next  term. 

The  clerk  is  required  to  make  up  such  record  in  each  cause 
in  the  vacation  next  after  the  term  at  which  the  same  was 
determined ;  and  the  presiding  judge  of  such  court  must,  at 
its  next  term  thereafter,  subscribe  the  same.'''' 

Sec.  117.    What  papers  constitute  complete  record. 

The  record  must  be  made  up  from  the  petition,  the  proc- 
ess, the  return,  the  pleadings  subsequent  thereto,  reports, 
verdicts,  orders,  judgments  and  all  material  acts  and  pro- 
ceedings of  the  court,  but  if  the  items  of  an  account,  or  the 
copies  of  papers  attached  to  the  pleadings  be  voluminous,  the 
court  may  order  the  record  to  be  made  by  abbreviating  the 


entered   on   the  journal    during   the  identical.     The   right   to  have   such 

term    at    which    the    judgment    was  record    may    be    waived   by   all    the 

taken.     Coe  v.  Erb,  59  0.  S.  250.  parties.       Johnson     v.     Rawles,     58 

67Krusela   v.    DeCamp,    15    C.    C.  .N.     W.      (Neb.)      142;     Colonial    v. 

(Ohio),  494.  Foutch,  47  N.  W.  929. 

68  Snyder,    5,937:    Wilson,    4,604;  bo  Snyder,    5,938;    Wilson,    4,605; 

Kansas,     4,864      (1901),     identical;  Nebraska,    1,435     (1907),    identical. 

Nebraska,    1,434    (1907),    identical;  This    statute    directory.      Colony   v. 

Ohio  Gen.  Code,  Sec.  11,605   (1910),  Billingly,  89 'N.  W.  (Neb.)  744. 


109  REAL   ESTATE   UNDER   EXECUTION. — JUDGMENT.       §§  118-120 

same,    or   inserting    a    pertinent    description    thereof,    or    by 
omitting  them  entirely.    Evidence  must  not  be  recorded.^*' 


Sec.  118.     Upon  failure  of  clerk  to  make  complete  record, 
court  may  do  so. 

When  the  judicial  acts  and  other  proceedings  of  any  court 
have  not  been  regularly  brought  up  and  recorded  by  the 
clerk  thereof,  such  court  is  required  to  cause  the  same  to  be 
made  up  and  recorded  within  such  time  as  it  may  direct. 
"When  they  are  made  up,  and,  upon  examination,  found  to  be 
correct,  the  presiding  judge  of  such  court  must  subscribe  the 
same.'^^ 

Sec.  119.    Judgment  becomes  dormant,  when. 

If  an  execution  be  not  sued  out  within  five  years  from  the 
date  of  any  judgment  that  now  is  or  may  hereafter  be  ren- 
dered, in  any  court  of  record  in  this  State,  or  if  five  years 
have  intervened  between  the  date  of  the  last  execution 
issued  on  such  judgment,  and  the  time  of  suing  out  another 
writ  of  execution  thereon,  such  judgment  shall  become 
dormant  and  will  cease  to  operate  as  a  lien  on  the  estate  of 
the  judgment  debtor.'^^ 

Sec.  120.    Dormant  judgments — How  revived. 

When  a  judgment  becomes  dormant,  it  may  be  revived  in 
the  same  manner  as  is  prescribed  for  reviving  actions  before 
judgment.'^^ 


70  Snyder,  5.939;  Wilson,  4,606 
Kansas,  4,866  (1901),  identical 
Nebraska,    1,436    (1907),   identical 


72  Snyder,  5.969;  Wilson,  4,635; 
Kansas,  4,895  (1901),  identical; 
Nebraska,    1,480    (1907),   identical; 


Ohio  Gen.  Code,  Sec.  11,607   (1910),  Ohio  Gen.  Code,  Sec.  11,663   (1910), 

identical.  similar.       For     discussion     of     this 

71  Snyder,    5,940;    Wilson,    4,607;        statute,    see    Section    ,    herein, 

Kansas,     4,867      (1901),     identical;  chapter  on   Executions. 

Ohio  Gen.  Code,  Sec.  11,609   (1910),  73  Act  of  March  16,  1893;  Wilson, 

identical.  4,630. 


§  121  merwine's  trial  op  title  to  land.  110 

Parties  must  be  notified  and  the  sheriff  must  make  return 
of  service  in  actions  for  this  purpose/* 

Sec.  121.     Judgment  lien — General  discussion. 

It  has  been  said  of  this  lien  created  by  a  judgment,  that, 
''as  a  general  rule,  and  except  in  special  and  peculiar 
cases,  it  does  not  belong  to  the  courts  of  law  to  prescribe  the 
kind  or  extent  of  the  lien  which  shall  result  from  the  judg- 
ments they  pronounce,  or  to  control  it  in  any  way,  as  by 
restricting  it  to  certain  prescribed  property.  The  court  has 
usually  nothing  to  do  with  the  manner  in  which  its  judg- 
ment sluill  be  enforced,  or  the  fund  from  which  it  shall  be 
satisfied ;  it  merely  pronounces  the  sentence  of  the  law  on 
the  facts  before  it,  to  which,  thereupon,  the  incident  of  the 
lien  attaches  by  virtue  solely  of  positive  law.  It  is,  of  course, 
to  be  understood  that  reference  is  here  made  to  judgments 
at  law,  as  distinguished  from  decrees  in  chancery.  The 
powers  of  equity  in  this  respect  are  sufficiently  familiar. 
The  lien  of  a  judgment  upon  the  lands  of  a  judgment  debtor 
is  entirely  the  creature  of  the  statute,  and  is  not  dependent, 
in  any  manner,  on  contract  of  the  parties.  It  begins,  con- 
tinues and  terminates  at  the  will  of  the  Legislature. ' '  ''^ 

The  party  in  whose  favor  a  judgment  is  secured  has  no  set 
interest  in  the  real  estate  of  the  judgment  debtor.  His  right 
in  the  judgment  can  be  secured  only  by  taking  such  steps 
under  his  lien  as  will  enable  him  to  enforce  it.  He  cannot, 
if  the  judgment  debtor  has  sold  the  real  estate  upon  which 
he  has  a  lien,  go  after  the  proceeds  of  the  sale  thereof.  His 
right  is  to  have  an  execution  issued  and  the  real  estate  sold 


74  Wilson  V.  McCormick,  10  Okla.  the   time  of   the   revivor.      Horbach 

ISO,  61  Pac.  168;  Neal  v.  LeBreton,  v.   Snively,   74   N.   W.    (Neb.)    623; 

14   Okla.   538,   28   Pac.   376.      Jurlg-  Hahnes  v.  Dovey,  98  N.  W.   (Neb.) 

ments    in    the    county    court    that  631. 

have   become   dormant   must   be   re-  ^s  Black   on   Judgments,   Sec.   402, 

vived   as    required   by  this    statute?.  citing  Castro  v.  lilies,  13  Tex.  220; 

Creighton     v.     Gonni,     37     N.     W.  Houston  v.  Houston,  67  Ind.  276. 
(Neb.)     76.      The    lien    dates    from 


Ill        REAL   ESTATE   UNDER   EXECUTION. — JUDGMENT.       §§122,123 

to  satisfy  his  lien.  The  creditors  of  the  judgment  debtor  may 
not,  by  any  proceeding  to  which  the  creditor  is  not  a  party, 
impair  the  lien  of  the  judgment.  The  lien  of  the  judgment 
does  not  give  the  holder  of  it  any  right  to  the  crop  on  the 
land  at  the  time  it  is  secured,  nor  any  right  to  the  rents  and 
profits  of  the  real  estate,  and  all  the  real  estate  of  the  judg- 
ment debtor  in  the  county  where  the  judgment  is  recovered 
is  subject  to  the  lien,'^® 

Sec.  122.     Judgment  of  county  court  lien  on  real  estate. 

All  judgments  rendered  in  the  county  courts  of  the  State 
of  Oklahoma,  are  liens  on  any  and  all  real  estate  of  the 
judgment  debtor  in  the  counties  where  jurisdiction  lies.'^^ 

Sec.  123.     Lien  on  real  estate — ^Lien  dates  from  when — Lien 
on  judgment  from  another  county,  how  secured. 

Judgments  of  courts  of  record  of  this  State,  and  of  courts 
of  the  United  States,  rendered  within  this  State,  are  liens  on 
the  real  estate  of  the  debtor  within  the  county  in  which  the 
judgment  is  rendered  from  and  after  the  time  the  judgment 
is  entered  on  the  judgment  docket.  An  attested  copy  of  the 
journal  entry  of  any  judgment,  together  with  a  statement 
of  the  costs  taxed  against  the  debtor  in  the  case,  may  be 
filed  in  the  office  of  the  clerk  of  the  district  court  of  any 
county,  and  such  judgment  will  operate  as  a  lien  on  the 
real  estate  of  the  debtor  within  that  county  from  and  after 
the  date  of  the  filing  and  entering  of  such  judgment  on  the 
judgment  docket.    The  clerk  is  required  by  law,  to  enter  such 

7a  Freeman  on  Judgments,  Sec.  11  Xeb.  295;  Conrarl  v.  Insurance 
528,  citing  Rogers  v.  Bonner,  45  Co.,  1  Pet.  378;  Lanning  v.  Car- 
-N.  Y.  379;  Independent  v.  Werner,  penter,  48  N.  Y.  412;  Rowe  v. 
43  la.  643;  Ashton  v.  Slater,  19  Miner,  28  Kan.  441;  Dail  v.  Free- 
Minn.  347;  Foute  v.  Faewman,  48  man,  92  N.  Car.  351;  Logan  v. 
Miss.  536;  Petite  v.  Shepherd,  5  Hale,  42  Cal.  645. 
Paige,  493,  28  Am.  Dec.  437;  Wit-  77  Act  of  March  5,  1895;  Wilson, 
mer's  Appeal,  45  P.  S.  455,  84  1,876. 
Am.  Dec.  505;  Mansfield  v.  Gregory, 


§124 


merwine's  trial  of  title  to  land. 


112 


judgment  on  the  appearance  and  judgment  dockets  in  the 
same  manner  and  within  the  same  time  after  such  judgment 
is  filed  in  his  office  as  if  rendered  in  the  court  of  which  he 
is  clerk.  Executions  can  only  be  issued  from  the  court  in 
which  the  judgment  is  rendered.'^® 

Sec.  124.    Judgment  recorded  in  office  of  register  of  deeds — 
Effect  of. 
Any  judgment  or  decree  of  a  court  of  competent  jurisdic- 
tion, finding  and  adjudging  the  rights  of  any  party  to  real 


78  Snyder,  5,941;  Wilson,  4,608. 
A  judgment  of  the  probate  court 
rendered  prior  to  March  7,  1893, 
was  a  lien  upon  the  real  estate 
of  the  judgment  debtor  in  the 
county  wherein  such  judgment  was 
rendered,  and  continued  to  be  a 
lien  on  such  real  estate  for  the 
period  of  sixty  days  after  that  date, 
but  ceased  to  operate  as  a  lien  on 
real  estate  after  the  expiration  of 
sixty  days  from  March  7,  1893, 
unless  the  judgment  creditor  caused 
to  be  filed  in  the  office  of  the  clerk 
of  the  district  court  a  transcript 
or  abstract  of  his  judgment  recov- 
ered in  the  probate  court.  And 
where  one  recovered  a  judgment  in 
the  probate  court  against  a  party, 
prior  to  March  7,  1893,  but  failed 
to  file  a  transcript  or  abstract  of 
such  judgment  in  the  office  of  the 
clerk  of  the  district  court  until 
after  the  expiration  of  sixty  days 
from  the  date  last  above  named, 
and  thereafter,  and  prior  to 
March  5,  1895,  the  judgment  debtor 
sold  real  estate  located  in  the 
county  where  such  judgment  was 
rendered,  to  a  third  party,  and  con- 
veyed the  same  by  warranty  deed, 
such  third  party  acquired  a  good 
title  as  against  the  judgment  cred- 


itor, such  creditor  having  lost  his 
lien  on  said  real  estate,  by  not 
filing  a  transcript  or  abstract  of 
his  judgment  in  conformity  with 
Section  2  of  the  act  relating  to 
judgments  rendered  in  probate 
courts,  on  page  1,191  of  the  statutes 
of  Oklahoma  of  1893.  A  judgment 
rendered  in  a  probate  court  of  this 
territory,  after  March  7,  1893,  and 
prior  to  March  5,  1895,  did  not, 
between  said  dates,  operate  as  a 
lien  on  the  real  estate  of  the  judg- 
ment debtor  in  the  county  wherein 
such  judgment  was  rendered,  unless 
a  transcript  or  abstract  thereof  was 
filed  in  the  office  of  the  clerk  of 
the  district  court.  Upon  the  filing 
of  such  transcript  or  abstract  in 
the  office  of  the  clerk  of  the  district 
court,  it  operated  as  a  lien  upon 
the  real  estate  of  the  judgment 
debtor  in  such  county,  the  same  as 
if  a  judgment  for  that  amount  had 
been  rendered  in  the  district  court. 
Spencer  v.  Eippe,  7  Okla.  608,  56 
Pac.  1,070;  see,  also,  Lowenstein  v. 
Young,  8  Okla.  216,  57  Pac.  164; 
see,  also,  on  this  subject,  Baird  v. 
Williams,  4  Okla.  173,  44  Pac.  217; 
Lewis  V.  Athertoii,  5  Okla.  90,  47 
Pac.  1.070. 


113  REAL   ESTATE   UNDER   EXECUTION. — JUDGMENT.      §§  125-127 

estate,  or  any  interest  therein,  duly  certified,  may  be  filed  for 
record  and  recorded  in  the  office  of  the  register  of  deeds 
with  like  effect  as  a  deed  duly  executed  and  acknowledged.^* 


Sec.  125.    Res  adjudicata — Parties  defendant. 

Nothing  in  the  code  of  civil  procedure  shall  be  so  con- 
strued as  to  make  a  judgment  against  one  or  more  defendants 
jointly  or  severally  liable,  a  bar  to  another  action  against 
those  not  served.^" 


Sec.  126.    Lis  pendens. 

Where  the  petition  has  been  filed,  the  action  is  pending,  so 
as  to  charge  third  persons  with  notice  of  its  pendency,  and 
while  pending  no  interest  can  be  acquired  by  third  persons  in 
the  subject-matter  thereof  as  against  the  plaintiff's  title;  but 
such  notice  shall  be  of  no  avail  unless  the  summons  be  served 
or  the  first  publication  made  within  sixty  days  after  the  filing 
of  the  petition.®^ 


Sec.  127.    Lis  pendens — Lands  in  other  county. 

"Where  any  part  of  real  property,  the  subject-matter  of  an 
action,  is  situated  in  any  other  county  or  counties  than  the 
one  in  which  the  action  is  brought,  a  certified  copy  of  the 
judgment  in  such  action  must  be  recorded  in  the  office  of  the 
register  of  deeds  of  such  other  county  or  counties,  before  it 
shall  operate  therein  as  notice,  so  as  to  charge  third  persons, 
as  provided  in  the  preceding  section.  It  shall  operate  as 
such  notice,  without  record,  in  the  county  where  it  is  ren- 
dered.^^ 


79  Snyder,   1,216;    Wilson,  909.  si  Snyder,  5,621;   Wilson,  4,285. 

80  Snyder,  5,620;  Wilson,  4,284.  82  Snyder,  5,622;  Wilson,  4,285. 


§  128  merwine's  trial  op  title  to  land.  114 

Sec.  128.  The  procedure  by  which  judgment  is  obtained  on 
warrant  of  attorney  to  confess  judgment — Form 
for  the  petition. 

District  Court  of County,  State  of  Oklahoma. 

• ,  Plaintiff, 


vs.  No. . 

,  Defendant. 

PETITION. 

The  plaintiff  says  that  it  is  a  corporation  duly  incorporated 
and  organized  under  the  laws  of  the  State  of  Oklahoma,  having 
its  banking  house  and  principal  place  of  business  in  the  city 

of ,  in  the  County  of ,  State  of  Oklahoma,  and  this, 

its  action,  is  founded  upon  a  promissory  note,  of  which  the  fol- 
lowing is  a  copy,  with  all  the  indorsements  and  credits  thereon : 
$ .  ,  Oklahoma,  ,  19—. 

On  demand  after  date,  for  value  received,  I  promise  to  pay 

The Company,  at  its  banking  house  in ,  Oklahoma, 

the  sum  of  $ ,  with  interest  thereon  at  the  rate  of 

per  cent.,  payable annually  after  date  until  paid,  and  I 

do  hereby  authorize  any  attorney  at  law  to  appear  for  me  in  an 
action  on  the  above  note  at  any  time  after  the  same  becomes  due, 
in  any  court  of  record  in  the  State  of  Oklahoma,  to  waive  the 
issuance  of  process  against  me,  and  to  confess  judgment  in  favor 
of  the  legal  holder  of  said  note  against  me,  for  the  amount  then 

due  on  said  note,  at  the  rate  of per  cent,  interest  therein 

stipulated,  and  hereby  release  all  errors  in  said  proceedings 
and  all  right  to  prosecute  a  petition  in  error  upon  such  judg- 
ments or  proceedings.  . 

Said  note  being  indorsed  as  follows : 


State  of  Oklahoma, County,  ss. : 

Before  me, ,  a in  and  for  said  county  and  State, 

on  this day  of ,  19 — ,  personally  appeared , 

to  me  knoAMi  to  be  the  identical  person  who  executed  the  within 
and   foregoing  instrument,   and   acknowledged   to   me   that   he 


115  REAL   ESTATE    UNDER    EXECUTION. JUDGMENT.  §  129 

executed  the  same  as  his  free  and  voluntary  act  and  deed  for 
the  uses  and  purposes  therein  set  forth. 


There  is  due  the  plaintiff  from  defendant  on  said  note  the 

sum  of  $ ,  which  it  claims  with  interest  from  the  

day  of  ,  19 — ,  at  per  cent,  per  annum,  payable 

annually,  until  paid,  for  which,  with  costs  of  suit,  it  asks 

judgment  against  the  defendant. 


Attorney  for  Plaintiff. 


Sec.  129.     The  answer  confessing  judgment. 

District  Court  of County,  State  op  Oklahoma. 

,  Plaintiff, 


vs.  No. 
,  Defendant. 


ANSWER  CONFESSING  JUDGMENT. 

The  defendant,  ,  by  ,  attorney,  an  attorney  of 

record  in  this  court,  duly  authorized  by  warrant  of  attorney 
embraced  in  the  note  sued  on  in  this  suit,  and  which  note,  with 
the   accompanying  warrant  of  attorney,  with  acknowledgment 

thereof  in  due  form,  as  required  by  statute,  is  produced, 

now  comes  and  waives  the  issuing  and  service  of  process  in  this 
action,  and  hereby  enters  the  appearance  of  said  defendant 
herein,  and  said  defendant,  by  ,  said  attorney,  duly  au- 
thorized as  aforesaid,  says  he  cannot  gainsay  or  resist  the  facts 
stated  or  allegations  contained  in  the  petition  of  said  plaintiff 
herein  filed  against  him,  but  acknowledges  and  confesses  the 
same  to  be  true,  and  says  he  is  indebted  to  plaintiff  on  said  note 
in  the  manner  and  form  as  in  its  petition  set  forth,  and  that  the 
amount  due  upon  said  indebtedness  at  this  date,  is  the  sum  of 

$ ,  with  interest  at  per  cent,  per  annum,  payable 

annually  until  paid,  and  therefor,  for  that  sum,  with 

interest  from  the  day  of  ,  19 — ,  at  per 

cent,  per  annum,  payable annually  until  paid,  according 

to  the  terms  thereof,  he  confesses  judgment   in  favor  of  the 


§  130  merwine's  trial  of  title  to  land.  116 

plaintiff,  and  waives  and  releases  all  errors  in  this  proceeding, 
and  all  right  to  prosecute  a  petition  in  error  upon  such  judg- 
ment and  proceeding. 


Attorney  for  Defendant. 
Sec.  130.     The  judgment  by  confession. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No. . 

,  Defendant. 

JUDGMENT  BY  CONFESSION. 

This  day  came  the  plaintiff  by  plaintiff's  attorney,  and  files 

its   petition    against    said    defendant,    ,    and    thereupon, 

,  one  of  the  attorneys  of  record  in  this  court,  also  ap- 
peared  in   open    court   for   and   on   behalf  of   said   defendant, 

,  and  who,  by  virtue  of  a  warrant  of  attorney  for  that 

purpose,  duly  executed  and  acknowledged  as  required  by  law, 
now  produced  in  open  court,  waives  the  issuing  and  service  of 
process,  and  enters  the  appearance  of  said  defendant,  herein,  and 
by  virtue  of  the  same  warrant  of  attorney,  confesses  there  is  due 
from  said  defendant  to  said  plaintiff,  as  is  alleged  in  plaintiff's 

petition,  the  sum  of  $ ,   bearing  interest   at  per 

cent,  per  annum,  payable  annually  until  paid,  and  that 

said  plaintiff  ought  to  recover  of  said  defendant,  judgment  for 
that  sum. 

It  is  therefore  considered  by  the  court  that  said ,  plain- 
tiff,   do    recover    from   said    ,    defendant,    said    sum    of 

$ ,  so  as  aforesaid  confessed  to  be  due,  together  with  costs 

of  suit  herein,  to  be  taken,  with  interest,  from  the  day 

of  ,   19 — ,  at  the  rate  of  per  cent,  per  annum, 

payable annually  until  paid,  and  by  virtue  of  said  war- 
rant of  attorney,  all  errors  in  this  proceeding  are  released,  and 
all  rights  to  prosecute  a  petition  in  error  from  such  judgment 
and  proceeding  are  hereby  waived. 


Judge  of  said  Court. 
Done  in  open  court  this day  of — ,  19 — . 


CHAPTER   VI. 

THE  LAW  AND  PROCEDURE  BY  WHICH  REAL  ESTATE 
IS  SOLD  UNDER  LEVY  OF  AN  EXECUTION. 


SECTION 

131.  General  statement. 

132.  The  praecipe  for  an  execution. 

133.  The      execution — Nature      and 

kinds  thereof. 

134.  Tlie    property    subject    to    levy 

and  execution. 

135.  The   property   bound    from    the 

time  of   the  levy. 

136.  The     judgment     becomes     dor- 

mant, when. 

137.  The  command  of  the  execution. 

138.  The  priority  in  case  of  several 

levies — The  officer  must  in- 
dorse on  the  writ  the  date  he 
received  it. 

139.  If   no    goods,    to    levy   on   real 

estate. 

140.  The  officer  may  require  bond  be- 

fore levying  on  goods  claimed 
by  third  party. 

141.  When   the    officer   may    take   a 

bond  and  leave  the  goods  in 
the  possession  of  the  de- 
fendant. 

142.  The    notice   of   sale — Inventory 

— Goods   taken   on   execution. 

143.  Property     insufficient — Further 

levj" — Indorsement   by  officer. 

144.  The    appraisement    vmder    the 

levy — Qualifications  of  the  ap- 
praisers— View  of  the  prem- 
ises. 

145.  The     appraisement      must     be 

made  on  actual  view. 

146.  The    return    of    the    appraisers 

conclusive  and  cannot  be  set 
aside  except  for  fraud  or 
other   proper  grounds. 


SECTION 

147.  Parol    evidence    may   be    intro- 

duced to  show  mistake  in 
appraisement — Appraisement 
set  aside,  when. 

148.  The  sale  may  be  made  without 

appraisement,  when. 

149.  The    return    cf    the    appraise- 

ment. 

150.  The    land    cannot   be    sold    for 

less  than  two-thirds  of  the 
appraised  value — Exceptions 
as  to  claims  due  State. 

151.  The  property  of  certain  officers 

sold  without  appraisement. 

152.  The  legal  notice  cf  sale  under 

the  execution. 

153.  The  sheriff's  return  of  his  pro- 

ceedings under  the  writ. 

154.  Confirmation  and   approval   by 

the  court  of  sheriff's  sale  of 
real  estate. 

155.  When    objection    to    the    con- 

firmation of  sale  should  be 
made. 

156.  The  irregularities  that  are  and 

are  not  corrected  by  the  con- 
firmation— The  procedure. 

157.  The   sheriff's   deed  to  the   pur- 

chaser. 

158.  Printer's    fee    to    be    advanced, 

when — Officer  must  demand 
same,  when. 

159.  Where   sale  must  take  place — 

Officer  or  appraiser  may  not 
purchase — Persons  in  trust 
relations  may  not  bid  at 
their   own   sales. 

160.  Alias  execution. 


117 


merwine's  trial  of  title  to  land. 


118 


SECTION 

IGL  Procedure  where  several  execu- 
tions are  issued — Creditors 
may   direct   several   levies. 

162.  When  one  other  than  the  officer 

making  the  sale  may  execute 
tlie  deed. 

163.  The  remainder  of  the  proceeds 

of  sale  to  be  returned  to  de- 
fendant. 

164.  The    reversal    of    the    judgTiient 

does  not  defeat  title  of  the 
j)urcliaser. 

165.  When   the   lien   expires   in   case 

no  execution  issues — The  lien 
when  mandate  issues  from 
the  Supreme  Court — When 
property  may  be  reappraised 
and  sold. 

166.  Tlie    writ    of    execution    to    be 

returned  in  sixty  days. 

167.  Fee  of  appraisers — Penalty  for 

failure  to   appear. 

168.  When    execution   may  issue   to 

sherifl"  of  another  county. 

169.  The  officer  may  mail  execution 

to  another  county. 

170.  Money    collected    by    execution 

in  another  county  may  not 
be  returned  by   mail. 

171.  Sureties     of     sheriff     may     be 

made  parties  to  the  judgment 
— Property  of  officer  to  be 
first  exhausted. 

172.  Officer  on  amercement  may  col- 

lect original  judgment,  when. 

173.  When  contribution  may  be  re- 

quired. 

174.  Equitable  interest  in  lands  sub- 

ject to  levy — Stocks — ^Choses 
in  action. 

175.  Pleading,    practice    and    proce- 

dure the  same  in  the  county 
court  as  in  the  district  court. 

176.  When  the  judgment  becomes  a 

lien  on   the  real  eGtate. 

177.  Execution  to  conform  to  judg- 

ment— Special  cases. 

178.  Judgment    of    justice    of    the 

peace,  how  docketed  by  clerk 
of  district  court. 


SECTION 

179.  Judgment   of   a   justice   of  the 

peace  becomes  a  lien  on  the 
real  estate,  when. 

180.  Execution      ihereon      may     be 

issued  by  the  clerk  of  the 
district  court. 

181.  Justice  to  certify  costs. 

182.  Judgment      may      be      revived, 

wlien. 

183.  The    procedure   by   which    real 

estate  is  levied  upon  and  sold 
under  judgment  in  a  civil 
action — The  petition  in  the 
action. 

184.  The  praecipe  for  summons. 

185.  The  summons  in  the  action. 

186.  The  sheriff's   return. 

187.  Motion     for     appointment     of 

guardian  ad  litem  to  defend 
for  insane  defendant. 

188.  The    affidavit    in    proof    of    in- 

sanity. 

189.  The  order  of  court  appointing 

a  g'/iardian  ad  litem  to  de- 
fend for  insane  defendant. 

190.  The    answer     of    guardian    ad 

litem  for  insane  defendant. 

191.  The  judgment  of  the  court   in 

the  action. 

192.  The  execution. 

193.  The  sheriff's  return  of  his  pro- 

ceedings under  the  execution. 

194.  The  appraisement  by  the  sheriff 

of  real  estate  under  levy 
of  execution — The  oath  of 
the  appraisers — The  appraise- 
ment. 

195.  Sheriff's   publication    of   notice 

of  sale  of  real  estate  under 
the  levy  and  execution. 

196.  The    prooif    of     publica-tion     of 

sheriff's  notice  of  sale  of 
real  estate. 

197.  The    order    of    the    court    ap- 

proving and  confirming  the 
sale  of  real  estate  under  the 
execution. 

198.  Sheriff's  deed  where  real  estate 

is  sold  under  the  ordinary 
writ  of  execution. 


119 


REAL,   ESTATE   UNDER   EXECUTION. — SALE. 


§131 


SECTION 

199.  Procedure  where  real  estate  is 

sold  under  a  venditioni  ex- 
ponas— Tlie    sheriff's    return. 

200.  The  praecipe  for  the  venditioni 

exponas. 

201.  The  order  of  sale  directed  from 

the  clerk  to  the  sherilf — The 
venditioni  exponas. 

202.  The  appointment  of  appraisers 

under  a  venditioni  exponas — ■ 
The  oath  of  appraisers — The 
appraisement. 

203.  The  legal  notice  by  the  sheriff 

under  a  venditioni  exponas. 

204.  Pi-oof  of  publication  of  sale  by 

sheriff  under  a  vemlitioni  ex- 
ponas. 

205.  The  sheriff's  return  of  the  ven- 

ditioni exponas. 

206.  The  procedure  for  sale  of  \evj 

made  under  foreign  execution 
— The  petition  asking  for  the 
mashaling  of  liens  and  sale 
of  real  estate. 

207.  The  answer   and  <^ross-petition 

of  defendant  setting  up  a  life 
estate  in  the  premises  levied 
upon. 


SECTION 

208.  The     answer     of     a     judgment 

debtor  containing  a  general 
denial. 

209.  The   answer   and   cross-petition 

of  a  lienholder  setting  up  a 
mortgage. 

210.  The     judgment    of     the     court 

finding  the  issues  in  favor  of 
the  plaintiff  and  decreeing 
and  ordering  sale  f^T  the  real 
estate. 

211.  The  appointment  of  appraisers 

— The  oath  of  the  appraisers 
— The  appraisement. 

212.  The    sherifl''s    legal    notice    of 

sale  of  real  estate  under  uie 
order  of  sale. 

213.  The    -pfooi    of    publication    of 

sherifl"'s  notice  of  sale  of  real 
estate. 

214.  The  sheriff's  return  of  his  pro- 

ceedings under  the  order  of 
sale. 

215.  The    confirmation    of    the    sale 

and  order  for  deed  and  dis- 
tribution of  the  proceeds  of 
sale. 

216.  The  sheriff's   deed  to  the  pur- 
chaser. 


Sec.  131.     General  statement. 

The  law  of  this  subject  is  controlled  and  regulated  largely 
by  statute.  The  law  of  the  subject  of  sales  of  real  estate  by 
execution  was  taken  originally  from  the  statute  of  Ohio. 
Both  Kansas  and  Nebraska  have  the  old  statutes  of  Ohio  on 
the  subject.  Both  States,  however,  have  avoided  many  of  the 
defects  of  the  older  statutes  by  enacting  new  and  better 
laws  on  the  subject.  Our  State  has  in  force  the  Ohio  statute 
on  the  subject.  The  decisions  of  the  Supreme  Courts  of 
Kansas,  Nebraska  and  Ohio,  so  far  as  necessary  to  construe 
the  statutes  of  our  State,  will  be  found  in  the  text.  The 
arrangement  of  the  topics  in  this  chapter  is  as  made  by  the 
Legislature  of  the  State.  The  arrangement  could  be  made 
more  analytical  and  logical,  but  it  was  deemed  best  to  follow 
the   plan   of  the   statutes   on   the   subject,   and,   as   the   laws 


§§132,133  merwine's  trial  op  title  to  land.  120 

regulating  levies  in  execution  on  personal  property  and  real 
property  are  interwoven,  the  law  on  both  subjects  will  be 
set  forth  in  this  chapter. 

Sec.  132.     The  praecipe  for  an  execution. 

Most  clerks  of  the  courts  have  blank  forms  for  praecipe 
which  can  be  filled  out  by  the  attorney.  But  no  particular 
form  need  be  followed.  It  should  request  the  clerk  to  issue 
an  execution  on  the  judgment,  directed  to  the  sheriff  accord- 
ing to  law. 

Sec.  133.     The  execution — Nature  and  kinds  thereof. 

Executions  shall  be  deemed  process  of  the  court,  and  shall 
be  issued  by  the  clerk  and  directed  to  the  sheriff  of  the 
county;  they  may  be  directed  to  different  counties  at  the 
same  time. 

Executions  are  of  four  kinds:  1.  Against  the  property  of 
the  judgment  debtor.  2.  Against  his  person.  3.  For  the 
delivery  of  the  possession  of  real  or  personal  property,  with 
damages  for  holding  same,  and  costs.  4.  Executions  in  special 
cases. 

An  execution  has  been  defined  to  be  a  command  or  pre- 
cept to  the  sheriff  or  a  ministerial  officer,  directing  him  to 
execute  the  judgment  of  the  court.  It  is  the  command  of 
the  court  addressed  to  the  ministerial  officer,  in  writing, 
under  the  seal  of  the  court,  containing  with  more  certainty 
the  command  of  the  court,  and  expressed  with  more  solemnity 
than  if  uttered  verbally  by  the  court.  It  is,  nevertheless,  a 
command  of  the  court  to  the  officer  to  proceed  and  execute 
the  judgment  of  the  court.^ 


1  Kelly  V.   Vincent,   8   0.   S.  420;  limit,   it   may  be  given   in   a   letter 

Lessee  of  Darby  v.   Carson,  9  Obio,  properly     directed     and    mailed    to 

149.       An    actual    delivery    to    the  the    sheriff.      It    may    be    delivered 

sheriff    is    not    necessary.      But    it  by  the  clerk  to  the  plaintiff  or  his 

must  be   actual   or   constructive  de-  attorney,    to    be    delivered     to    the 

livery    to    him.      If   within    a    time  sheriff.     Kelly  v.   Vincent,   8   O.   S. 


121  REAL   ESTATE   UNDER   EXECUTION. — SALE.  §  133 

When  the  praecipe  has  been  filed  with  the  clerk,  he  cannot 
question  plaintiff's  right  to  do  so,  but  must  obey  its  com- 
mand, unless,  however,  where  the  language  of  the  judgment 
is  ambiguous,  and  giving  it  the  construction  which  it  may 
have,  the  plaintiff  might  not  be  entitled  to  the  execution, 
the  clerk  may  not  upon  mandamus,  be  required  to  issue  it.^ 
It  is  subject  to  amendment,  and,  in  one  case,  where  the  clerk 
had  omitted  his  seal,  it  was  held  it  could  be  attached  even 
after  the  sale.  The  execution  must  be  issued  by  the  same 
court,  in  which  the  judgment  is  entered.^  And  the  issuance 
of  the  writ  and  the  sale  of  the  property  made  under  it,  are 
both  ministerial  acts.* 

There  are  now  in  the  procedure  by  which  real  estate  is 
sold  under  an  execution,  three  kinds  of  execution.  There  is 
the  ordinary  execution  which  is  the  execution  commanding 
that  the  goods  and  chattels  be  levied  on  to  satisfy  the  judg- 
ment, and  that  in  default  thereof,  the  lands  and  tenements 
are  levied  on,  and  sold.  This  execution  must  be  returned  in 
sixty  days.  Then,  there  is  the  execution  issued  under  order 
of  sale  in  the  foreclosure  of  a  mortgage,  or  other  kindred 
liens.  This  need  not  be  returned  in  sixty  days.  An  execu- 
tion of  this  latter  kind  is  designated  a  special  execution,  but 
such  executions  must  conform  to  the  order  of  sale.^  Then 
there  is  the  venditioni  exponas.  This  was  the  common  law 
writ  still  in  force  in  this  State,  which  is  a  process  in  con- 
tinuation and  completion  of  a  previous  execution  by  which 
property  had  been  appropriated  and  placed  in  the  custody 
of  the  law.  Again,  it  has  been  said  to  be  issued  when  the 
original,  alias  or  pluries  writ  of  fieri  facias  is  returned  with  an 

420.      An   execution   can    is«vie   only  *  Needles    v.    Frost,    2    Okla.    19, 

out   of   the    court   where   the    judg-  35   Pac.   574. 

ment     was      rendered.        Milson     v.  5  Price  v.   Citizens,   23   Okla.    723, 

Rouk,  57   0.  S.   422.  102    Pac.    803;    Norton    v.   Reardon, 

2  Hill  V.  Stewart,  23  Kan.   397.  67     Kan.    30'2,     72     Pac.    861,     101 

3  Chandler  v.  Colcord,  1  Okla.  200,  Am.     St.    Rep.    459 ;     Thompson    v. 
32  Pac.  330.  Purge,    60   Kan.    549,    57   Pac.    110, 

72  Am.   St.   Rep.   369. 


§133 


merwine's  trial  of  title  to  land. 


122 


indorsement  showing  that  the  officer  has  levied  on  the  prop- 
erty and  has  the  same  in  his  hands  unsold.® 

Upon  this  subject  one  author  has  said : 

"And  though  the  proper  course  is,  after  levy  of  a  fieri 
facias  on  lands,  and  a  return  thereof  without  sale,  to  sue  out 
a  writ  of  vendi.  exponas  against  the  property  levied  on,  yet 
the  plaintiff  will  not  lose  the  lien  of  his  levy  if,  instead 
thereof,  he  cause  to  be  issued  an  alias  fi.  fa.  and  sells  the 
property  thereon.  The  latter  course,  though  irregular,  is  not 
a  waiver  of  the  previous  levy.  For  the  alias  fi.  fa.  by  rela- 
tion reaches  back  to  the  levy  of  the  original  writ  and  pre- 
serves its  lien  so  as  to  bind  the  property  and  prevent  priority 
of  another  levy  made  in  the  interim  upon  the  same  property, 
if  the  subsequent  or  alias  fi.  fa.  has  issued  in  due  time."  ^ 


•5  Hamilton  v.  Wilson,  61  Kan. 
428,  59  Pac.  1,068 ;  Bank  v.  Hinton, 
35  Kan.  577,   11  Pac.  369. 

7  Rorer  on  Judicial  Sales,  Sees. 
680  and  581,  citing  Bonton  v.  Lord, 
15  0.  S.  454;  Brashfield  v.  Whit- 
aker,  4  Howks,  309.  "When,  under 
the  valuation  law,  a  sale  of  real 
estate  fails  for  want  of  time  and 
the  amount  required  on  valuation 
by  the  statute,  by  reason  whereof 
the  writ  is  returned,  and  venditioni 
exponas  issued,  and  sale  is  made 
thereon,  such  sale  relates  back  to 
the  original  levy,  and  is  but  a  con- 
tinuation of  the  proceedings  on  the 
original  writ.  It  saves  the  lien  as 
an  alias  would  have  saved  it,  and 
is  a  valid  sale."  "If,  in  the  mean- 
time, the  defendant  die  between 
the  time  of  the  levy  of  the  fieri 
facias  and  the  issuing  of  the  writ 
of  venditioni  exponas,  the  latter 
may  legally  issue,  notwithstanding 
his  death,  and  the  snle  thereon  is 
valid,  and  carries  with  it  all  rights 
as  to  lien  acquired  by  the  original 


levy  of  the  fieri  facias,  or  by  the 
judgment.  Xo  revival  of  fieri  facias 
is  necessary."  Roror  on  Judicial 
Sales,  Sees.  689  and  690,  citing 
Taylor  v.  Miller,  13  Howard,  487. 
"An  execution  was  levied  upon 
land  which  was  appraised  and  ad- 
vertised for  sale  by  the  sheriff. 
Further  proceedings  under  the  writ 
were  enjoined  by  the  judgment 
debtor,  and  return  of  the  process 
made  by  the  officer,  reciting  the 
facts.  The  defendant  in  the  execu- 
tion then  died,  and  the  injunction 
suit  was  dismissed.  Immediately, 
and  without  revivor,  an  alias  execu- 
tion was  issued,  reciting  the  steps 
taken  under  the  first  one,  and  the 
land  advertised  and  sold  there- 
imder.  Held,  that  the  alias  execu- 
tion, under  the  statute,  performed 
the  office  of  a  venditioni  exponas 
at  commnn  law,  and  that  a  sale  made 
under  it  was  valid.  Rain  v.  Young, 
61  Kan.  428,  59  Pac.  1,068;  see, 
also,  Retchie  v.  Higginbotham,  26 
Kan.  645. 


123  KEAL    ESTATE    UNDER   EXECUTION. SALE.  §§134-136 

Sec.  134.     The  property  subject  to  levy  and  execution. 

Lands,  tenements,  goods  and  chattels,  not  exempt  by  law, 
are  subject  to  the  payment  of  debts,  and  are  liable  to  be 
taken  on  execution  and  sold,  as  hereinafter  provided.^ 

Sec.  135.     The  property  bound  from  the  time  of  the  levy. 

All  real  estate,  not  bound  by  the  lien  of  the  judgment,  as 
well  as  the  goods  and  chattels  of  the  debtor,  are  bound  from 
the  time  they  are  seized  on  execution.^ 

Sec.  136.     The  judgment  becomes  dormant,  when. 

If  execution  be  not  sued  out  within  five  years  from  the 
date  of  any  judgment  that  now  is,  or  may  hereafter  be  ren- 
dered in  any  court  of  record  in  this  State,  or  if  five  years 
intervene  between  the  date  of  the  last  execution  issued  on 
such  judgment,  and  the  time  of  suing  out  another  writ  of 
execution  thereon,  such  judgment  will  become  dormant,  and 
will  cease  to  operate  as  a  lien  on  the  estate  of  the  judgment 
debtor.^"' 

"It  is  well  settled,  both  by  the  statute  and  the  decisions, 
that  a  judgment  is  dormant  in  five  years,  and  that  an  execu- 
tion rendered  thereon  is  absolutely  void.  It  is  true  that  tbe 
statute  provides  that  no  execution  may  issue  against  a  county, 
but  proceedings  by  mandamus  are  only  in  the  nature  of  an 
execution  for  enforcing  the  collection  of  a  judgment  against  a 
municipality.  By  all  fair  analogies,  the  same  rule  applies, 
and  if  a  party  holding  a  judgment  against  a  municipality 
permits    it    to    stand    without    any    effort    to    collect    it    by 

8  Snyder,  5,967;  Wilson,  4,633;  similar;  Nebraska,  1,480  (1907), 
Kansas,  4,893  (1901),  identical;  identical.  "A  judgment  against  a 
Xebraska,    1.466     (1907),    identical.  city  of  the  first  class  becomes   dor- 

9  Snyder,  5,968;  Wilson,  4,634;  mant  after  five  years  from  the  date 
Kansas,  4,894  (1901),  identical;  of  its  rendition,  unless  the  judgment 
[Nebraska,    1,467     (1907),    similar.  creditor    within    said     time,    causes 

10  Snyder,  5,969:  Wilson,  4,635;  execution  to  be  levied  thereon." 
Kansas,  4,895  (1901),  identical;  Beadles  v.  Fry,  15  Okla.  428,  82 
Ohio  Gen.  Code,  Sec.  11,663    (1910),       Pac.   1,041. 


§  136  merwine's  trial  of  title  to  land.  124 

mandamus  proceeding  for  five  years,  the  judgment  becomes 
dormant,  and  there  must  be  a  revivor,  which  can  only  be  had 
within  a  year,  before  any  process  can  be  obtained  on  that 
judgment.  The  mandamus  is  equivalent  to  execution,  and  the 
same  rule  must  obtain  as  to  judgments  which  are  permitted 
to  stand  for  five  years  without  process.  "^^ 

It  was  held  that  the  lien  of  the  judgment  given  by  the 
statute,  and  such  as  are  created  by  levy  of  an  execution,  are 
of  no  avail  as  against  a  purchaser  after  the  judgment  becomes 
dormant,  before  it  is  revived.^-  A  decree  and  order  of  sale 
of  real  estate  never  becomes  dormant.  While  the  parties  to 
the  decree  live,  the  case,  for  the  purpose  of  the  decree,  is 
Us  pendens,  though,  under  the  code  practice,  the  clerk  is  di- 
rected to  leave  it  of£  the  trial  docket.^^  It  is  only  money 
judgments  that  become  dormant.^^ 

The  space  allotted  for  this  work  prevents  further  discussion 
of  dormant  judgments  and  the  revival  thereof.  The  practi- 
tioner will  find  a  careful  discussion  thereof  in  the  works  on 
pleading  and  court  procedure. ^^  In  the  note  below  will  be 
found  a  list  of  cases  from  other  States  having  identical 
statutes  which  have  been  construed.^** 


11  By  Justice  Brewer  in  United  aker's  Ann.  Civil  Code;  Bates' 
States  V.  Township  Oswego,  28  Pleading,  Practice,  Parties  and 
Fed.   55.  Forms. 

12  Smith  V.  Hogg,  52  0.  S.  528;  is  Chapman  v.  Chapman,  48  Kan. 
Poades  v.  Symmes,  1  Ohio,  281;  636,  29  Pac.  1,071;  Wibber  v. 
Styles  V.  Murphy,  4  Ohio,  92;  Nor-  Harshbarger,  5  Kan.  App.  185,  47 
ton  V.  Beaver,  5  Ohio,  178;  Miner  Pac.  166;  Nelson  v.  Keystone,  70 
V.  Wallace,  10  Ohio,  403;  Hutchin-  Kan.  43,  74  Pac.  269;  State  v. 
son  V.  Hutchinson,  15  Ohio,  301;  McArthur,  5  Kan.  281;  Kellen  v. 
Tucker  v.  Shade,  15  0.  S.  355;  iNeb.,  70  Kan.  83,  78  Pac.  159, 
West  v.   James,  51   0.   S.   330.  Dillon  v.  Chicago,  78  N.  W.   (Neb.) 

13  Ranker  v.  Hannan,  37  0.  S.  927;  Herbage  v.  Feme,  91  N.  W. 
117;  Moore  v.  Ogden,  35  O.  S.  430;  (Neb.)  408;  Flint  v.  Chalompke, 
Beaumont  v.   Ogden,   24   0.    S.   452.  99    N.    W.    (Neb.)     826;    Harvey   v. 

14  Moore  v.   Ogden,   35   0.   8.  430.  Godding,    109    N.    W.    (Neb.)     220; 

15  See  Kinkead's  Code  Pleading;  Reynolds  v.  Cobb,  19  N.  W.  (Neb.) 
Kinkead's     Court     Practice;     Whit-  509. 


125  REAL   ESTATE   UNDER   EXECUTION. — SALE.  §  137 

A  judgment  lien  is  created  by  statute,  and  is  destroyed  by 
the  statute,  if  its  provisions  requiring  the  taking  out  of  an 
execution  are  not  complied  with.^^ 

Sec.  137.     The  command  of  the  execution. 

The  writ  of  execution  against  the  property  of  the  judgment 
debtor,  issuing  from  any  court  of  record  in  this  State,  must 
command  the  officer  to  whom  it  is  directed,  that  of  the  goods 
and  chattels  of  the  debtor  he  cause  to  be  made  the  money 
specified  in  the  writ ;  and  for  want  of  goods  and  chattels,  he 
cause  the  same  to  be  made  of  the  lands  and  tenements 
of  the  debtor ;  and  the  amount  of  the  debt,  damages  and 
costs,  for  which  the  judgment  is  entered,  must  be  indorsed 
on  the  execution.^^ 

The  personalty  must  be  sold  first.  But  if  this  is  not  suffi- 
cient to  satisfy  the  debt,  the  real  estate  may  be  levied  on 
even  before  the  personalty  is  advertised  for  sale.^^  The  writ 
will  not  be  avoided  because  judgment  was  taken  for  more 
than  was  due,  but  this  may  be  corrected  on  proper  applica- 
tion to  the  proper  court.-" 

A  fi.  fa.  issued  and  levied  on  lands  of  a  judgment  debtor 
after  his  death,  and  his  land  sold  thereunder,  gives  no  title 
to  the  purchaser  of  said  lands.-^  But  where  the  execution  is 
issued  and  a  levy  made  on  the  lands  of  the  execution  creditor 
during  his  lifetime,  the  lands  so  levied  on  may  be  sold  under 
execution,  without  making  his  personal  representatives  a 
party  to  the  judgment.-^ 

In  the  absence  of  any  order  to  the  contrary,  it  is  made  the 
duty  of  the  sheriff,  under  an  order  for  sale  of  real  estate,  to 
sell  for  cash.-^ 

17  Hahms    v.    Dovey,    89    N.    W.  i9  Burge    v.    Brown,    45    N.    W. 

(Neb.)   631.  (Xeb.)    271. 


18  Snyder,  5,970;  Wilson,  4,636 
Kansas,  4,896  (1901),  identical 
Nebraska,    1,481     (1907),   identical 


20  Bogle   V.    Bloom,    36   Kan.   512, 
13   Pac.   793. 

21  Lessee  v.  Reed,  5  Ohio,  221. 


Ohio  Gen.  Code,  Sec.  11,664   (1910),  22  Bigelow    v.    Renker,    25    O.    S. 

identical.  609. 

23  Sharp  V.  Ross,  7  C.  C.  56. 


§138 


MERWINE  S   TRIAL   OF   TITLE    TO   LAND. 


126 


Sec.  138.  The  priority  in  case  of  several  levies — The  officer 
must  indorse  on  the  writ  the  date  he  received  it. 
When  two  or  more  writs  of  execution  against  the  same 
debtor  are  sued  out  during  the  term  in  which  the  judgment 
was  rendered,  or  within  ten  days  thereafter,  and  when  two 
or  more  writs  of  execution  against  the  same  debtor  are  deliv- 
ered to  the  officer  on  the  same  day,  no  preference  will  be 
given  either  of  said  writs;  but  if  a  sufficient  sum  of  money 
be  not  made  to  satisfy  all  such  executions,  the  amount  made 
must  be  distributed  to  the  several  creditors  in  proportion  to 
the  amount  of  their  respective  demands.  In  all  other  cases 
the  writ  of  execution  first  delivered  to  the  officer  must  be 
first  satisfied.  And  it  is  made  the  duty  of  the  officer  to  in- 
dorse on  every  writ  of  execution  the  time  when  he  received 
the  same ;  but  nothing  herein  contained  can  be  so  construed 
as  to  afi'ect  any  preferable  lien,  which  one  or  more  of  the 
judgments,  on  which  execution  issued,  may  have  on  the  lands 
of  the  judgment  debtor.-* 


24  Snyder,  5,971;  Wilson,  4,637; 
Kansas,  4,897  (1901),  identical; 
iNTebraska,  1,482  (1907),  identical; 
Ohio  Gen.  Code,  Sec.  11,667  (1910), 
identical.  See,  in  this  connection, 
Meyer  v.  Bank,  55  O.  S.  447;  Ryan 
V.  Root,  56  0.  S.  302;  Rough  v. 
Acknovitch,  36  W.  L.  B.  302;  Doll 
V.  Barr,  68  0.  S.  113;  Weber  v. 
King,  7  W.  L.  B.  14S;  Derkson  v. 
Reed,  2  Handy,  159 ;  Bank  v.  Roosa, 
13  Ohio,  334;  Waymire  v.  Staly, 
3  Ohio,  366;  Patton  v.  Sheriff,  2 
Ohio,  395.  In  a  proceeding  to 
determine  and  adjust  the  priorities 
of  certain  liens  existing  against  the 
real  property  of  a  debtor,  it  was 
found  that  an  execution  had  been 
taken  out  on  the  judgment  first  ren- 
dered within  one  year  after  its 
rendition,  and  levied  upon  land 
subject  to  a  mortgage;  but  it  was 
erroneously   appraised  by  excluding 


the  amount  of  the  mortgage  debt, 
and  the  execution  creditor  directed 
the  sheriff  not  to  advertise  and  sell 
under  the  illegal  appraisement. 
The  levy  was  made  v,pon  the  whole 
estate,  and  not  upon  a  mere  equi- 
table interest.  Within  the  suc- 
ceeding year  other  judgments  were 
obtained,  and  the  proceeding  to 
subject  the  mortgaged  land  of  the 
debtor  to  the  payment  of  the  liens, 
and  to  determine  the  respective 
priorities  of  the  same  was  begun 
and  tried.  Held,  that  the  existence 
of  a  mortgage  upon  the  land,  or 
the  illegal  appraisement  of  the 
same,  or  the  direction  of  the  execu- 
tion creditor  to  the  sheriff  not  to 
advertise  and  sell  under  such  ap- 
praisement, did  not  invalidate  the 
levy,  but  the  levy  as  made,  pre- 
served the  preference  and  priority 
of    the    lien    of    the    judgment    first 


127  REAL   ESTATE   UNDER   EXECUTION. — SALE.  §  139 

Sec.  139.     If  no  goods,  to  levy  on  real  estate. 

The  officer  to  whom  a  writ  of  execution  is  delivered,  is  re- 
quired to  proceed  immediately  to  levy  the  same  upon  tlie 
goods  and  chattels  of  the  debtor ;  but  if  no  goods  and  chat- 
tels can  be  found,  the  officer  must  indorse  on  the  writ  of 
execution,  "Xo  goods,"  and  forthwith  levy  the  writ  of  execu- 
tion upon  the  lands  and  tenements  of  the  debtor,  which  may 
be  liable  to  satisfy  the  judgment ;  and  if  any  of  the  lands 
and  tenements  of  the  debtor  which  may  be  liable  be  incum- 
bered by  mortgage  or  other  liens,  such  lands  and  tenements 
may  be  levied  upon,  appraised  and  sold,  subject  to  such  lien 
or  liens,  which  must  be  stated  in  the  appraisement.-^ 

Where  the  officer  fails  to  find  any  goods  and  chattels  and 
levies  upon  the  real  estate,  the  writ  cannot  be  avoided  be- 
cause, in  making  the  return,  he  does  not  use  the  exact  words 
of  the  statute  as  to  "no  goods."-" 

The  provision  of  this  statute  that  if  no  goods  or  chattels 
can  be  found,  the  officer  must  indorse  on  the  execution,  "No 
goods,"  is  directory  merely,  and  the  execution  debtor  may 
waive  the  provision.  Such  waiver  will  always  be  presumed 
unless  he  asserts  his  right  thereto  by  direct  proceeding.  In  a 
case  where  the  debtor  has  goods  and  chattels,  but  the  officer 
does  not  levy  thereon,  but  does  levy  on  the  lands  of  the 
judgment  debtor,  the  lien  of  such  levy  on  the  lands  will  not 
be  lost  as  against  subsequent  purchasers  and  creditors  because 
the  officer  omits  to  indorse  on  the  writ  "no  goods." -^  The 
return  of  the  writ  in  such  case  by  direction  of  the  creditor 
without  sale  of  the  property,  is  not  a  discharge  of  the  lien.-^ 
And  if  the  officer  IcA^ies  on  both  real  and  personal  property, 

Tendered.     Excelsior,   etc..  v.  Bovle.  Ohio  Gen.  Code,  Sec.  11,666   (1910), 

46  Kan.   202,   26  Pac.   408;    DeJar-  similnr. 

nette    v.    Verner,    40    Kan.    224,    10  =6  Trepiton     v.     Busee,     10     Kan. 

Pac.     667;     Smith    v.    Kimball,     36  1.070. 

Kan.   474,    1.3   Pie.   801.  =7  Coal    Co.    v.    Bank,    55    O.    S. 

=-"•  Snyder.    5.072:    Wilson.    4.638;  233. 

Kansas,     4.898      (1901),     identical;  ^s  Jhid ;    see,    also.    Cook    v.    Duis- 

Nebraska,     1,483     (1907),     similar;  more,  5  C.  C.   (Ohio),  585. 


§§140,141         merwine's  trial  op  title  to  land.  128 

and  sells  both  under  the  same  writ,  this  does  not  make  the 
levy  void.-" 

The  officer  making  the  levy  has  nothing  to  do  with  the 
liens  or  incumbrances  on  the  land.  It  is  his  duty  to  levy  on 
it  and  sell  it.  It  is  not  for  him  to  inquire  whether  the  land 
is  subject  to  any  lien ;  ^°  and  if  the  officer  is  not  proceeding 
according  to  law,  he  may  be  enjoined. ^^ 

Where  real  estate  is  levied  on,  appraised,  advertised  and 
offered  for  sale,  ])ut  not  sold  for  want  of  bidders,  and  the 
officer  so  makes  his  return,  the  lien  still  attaches,  and  the 
real  estate  may  be  again  offered  for  sale  under  other  writs. 

Sec.  140.  The  officer  may  require  bond  before  levying  upon 
goods  claimed  by  third  party. 
If  the  officer,  by  virtue  of  an  execution  issued  from  any 
court  of  record  in  this  State,  levy  the  same  upon  any  goods 
and  chattels  claimed  by  any  person  other  than  the  defendant, 
or  be  requested  by  the  plaintiff  to  levy  on  any  such  goods 
and  chattels,  the  officer  may  require  the  plaintiff  to  give  him 
an  undertaking,  with  good  and  sufficient  security,  to  pay  all 
costs  and  damages  that  he  may  sustain  by  reason  of  the 
detention  or  sale  of  said  property ;  and  until  such  under- 
taking be  given,  the  officer  may  refuse  to  proceed  as  against 
such  property.^^ 

Sec.  141.     When  the  officer  may  take  a  bond  and  leave  the 
goods  in  the  possession  of  the  defendant. 

In  all  cases  where  the  sheriff,  or  other  officer,  by  virtue 
of  an  execution,  levies  on  any  goods  and  chattels  which  shall 
remain  upon  his  hands  unsold,  for  want  of  bidders,  for  the 
want  of  time  to  advertise  and  sell,  or  any  other  reasonable 
cause,  the  officer  may,  for  his  own  security,  take  of  the  de- 
fendant,  an   undertaking,   with   security  in   such   sum   as  he 

29  Sullinger  v.   Biick,  22  Kan.  2S.  3i  Ihid. 

30DeJarnette  v.  Verner,   40  Kan.  32  Snyder,    ,5,973;    Wilson,   4,639; 

310,  19  Pac.  666.  Kansas,  4,899    (1901),  identical. 


129  REAL   ESTATE    UNDER   EXECUTION. — SALE.  §  142 

may  deem  sufficient,  to  tlie  effect  tliat  said  property  shall  be 
delivered  to  the  officer  holding  an  execution  for  the  sale  of 
the  same,  at  the  time  and  place  appointed  by  said  officer, 
either  by  notice,  given  in  writing,  to  said  defendant  in  execu- 
tion, or  by  advertisement  published  in  a  newspaper  printed 
in  the  county,  naming  therein  the  day  and  place  of  sale.  If 
the  defendant  fail  to  deliver  the  goods  and  chattels  at  the 
time  and  place  mentioned  in  the  notice  to  him,  given,  or  to 
pay  to  the  officer  holding  the  execution  the  full  value  of 
such  goods  and  chattels,  or  the  amount  of  said  debt  and 
costs,  the  undertaking,  given,  as  aforesaid,  may  be  proceeded 
on  as  in  other  cases.^^ 

Sec.   142.    The   notice   of   sale — Inventory — Goods   taken   in 
execution. 

The  officer  who  levies  on  goods  and  chattels  by  virtue  of 
an  execution  issued  by  a  court  of  record,  before  he  proceeds 
to  sell  the  same,  must  cause  public  notice  to  be  given  of  the 
time  and  place  of  sale,  for  at  least  ten  days  before  the  day 
of  sale.  The  notice  must  be  given  by  advertisement,  pub- 
lished in  some  newspaper  printed  in  the  county;  or,  in  case 
no  newspaper  be  printed  therein,  by  setting  up  advertise- 
ments in  five  public  places  in  the  county.  Two  advertise- 
ments shall  be  put  up  in  the  township  where  the  sale  is  to 
be  had ;  and  where  the  goods  and  chattels  levied  upon  cannot 
be  sold  for  want  of  bidders,  the  officer  making  such  return 
must  annex  to  the  execution  a  true  and  perfect  inventory  of 
such  goods  and  chattels,  and  the  plaintiff  in  such  execution 
may  thereupon  sue  out  another  writ  of  execution  directing 
the  sale  of  the  property  levied  on  as  aforesaid;  but  such 
goods  and  chattels  shall  not  be  sold  unless  the  time  and  place 
of  sale  be  advertised,  as  hereinbefore  provided.^* 

33  Snyder,    5,974;    Wilson,    4,640;  34  Snyder,    5,975;    Wilson,    4,641; 

Ohio  Gen.  Code,  Sec.  11,667   (1910),       Kansas,    4,900    (1901),    identical. 


§§143,144       merwine's  trial  of  title  to  land.  130 

Sec.  143.  Property  insufficient — Further  levy — Indorsement 
by  officer. 
When  any  writ  shall  issue,  directing  the  sale  of  property 
previously  taken  in  execution,  the  officer  issuing  said  writ 
is  required,  at  the  request  of  the  person  entitled  to  the  benefit 
thereof,  his  agent  or  attorney,  to  add  thereto  a  command  to 
the  officer  to'  whom  such  writ  may  be  directed,  that  if  the 
property  remaining  in  his  hands  unsold,  shall,  in  his  opinion, 
be  insufficient  to  satisfy  the  judgment,  he  shall  levy  the 
same  upon  lands  and  tenements,  goods  and  chattels,  or  either, 
as  the  law  shall  permit,  being  the  property  of  the  judgment 
debtor,  sufficient  to  satisfy  the  debt.^^ 

Sec.  144.    The  appraisement  under  the  levy — Qualifications  of 
the  appraisers — View  of  the  premises. 

If  execution  be  levied  on  lands  and  tenements,  the  officer 
levying  such  execution  must  call  an  inquest  of  three  disin- 
terested householders,  who  shall  be  resident  within  the  county 
where  the  lands  taken  in  execution  are  situate,  and  admin- 
ister to  them  an  oath,  impartially  to  appraise  the  property 
so  levied  on,  upon  actual  view ;  and  such  householders  shall 
forthwith  return  to  said  officer,  under  tlieir  hands,  an  esti- 
mate of  the  real  value  of  said  property.^" 

An  appraisement  made  before  oath  is  insufficient.^^  Where 
land  is  offered  for  sale  and  not  sold  for  want  of  bidders,  and 
four  years  afterward  it  is  offered  for  sale  again,  under  the 
old  appraisement,  the  court  will  set  aside  the  sale  on  proper 
application  made  for  that  purpose.^® 

In  conducting  the  proceedings  of  a  sale  of  real  estate  under 
an  execution,  or  order  of  sale,  a  deputy  sheriff  may  act  for 
the  sheriff.^^ 

3s  Snyder.    5.976;    ^Yilson,    4.642;  tical;      Nebraska,      1,490       (1907), 

Kansas,     4,902      (1901),     identical;  similar. 

Ohio  Gen.  Code,  See.  11,671    (1910),  37  Alfred  v.  Bank,  29  Pac.  471. 

identical.  ss  Kline   v.    Camp,    49    Kan.    114, 

36  Snyder,    5.977;    Wilson,    4.643;  30  Pac.   175. 

Ohio  Gen.  Code,  Sec.  11,672   (1910),  39  Young     v.     Wood,     S3     N.     W. 

similar;    Kansas,  453    (1889),  iden-  (Neb.)     528;    Keb.    v.    Marshall,    7 


131  REAL   ESTATE   UNDER   EXECUTION. — SALE.  §  §  145,  146 

Sec.  145.     The  appraisement  must  be  made  on  actual  view. 

Following  the  requirements  of  the  statute,  the  courts  of 
other  States  have  invariably  held  that  the  appraisement  must 
be  made  upon  actual  view.  It  matters  not  how  familiar  the 
appraisers  may  be  as  to  the  real  estate,  they  must  appraise 
it  upon  actual  view  at  the  time  the  appraisement  is  made. 
As  one  court  has  said : 

"Though  they  may  have  seen  it  often  and  recentb-,  yet, 
they  cannot  tell  how  far  its  conditions  may  have  been  altered 
in  a  day  by  improvements  or  otherwise,  and  what  effect  an 
additional  view  and  the  comparison  of  opinion  of  all  the 
appraisers  might  have  had. ' '  ^'^ 

This  rule  that  the  appraisement  must  be  made  upon  actual 
view  is  always  enforced  by  the  courts,  and,  in  cases  where 
the  court's  attention  is  called  to  the  matter,  before  the  sale 
and  confirmation,  the  court  will  set  aside  the  appraisement 
and  order  a  new  appraisement.  This  implies  such  a  view  as 
will  enable  the  appraisers  to  judge  fairly  of  the  land  and 
improvements  thereon,  and  the  mere  entrance  on  one  corner 
of  a  tract  of  land,  at  a  distance  a  half  a  mile  from  the  house 
and  outbuildings,  was  held  as  not  a  substantial  compliance 
with  the  law.*^ 

Sec.  146.     The  return  of  the  appraisers  conclusive  and  cannot 

be  set  aside  except  for  fraud  or  other  proper 

grounds. 

The  actions  of  appraisers  under  an  execution  or  order  of 

sale,  are  judicial,  and  will  not  be  disturbed,  except  for  fraud 

or  mistake,  or  where  the  appraisers  were  not  legally  qualified, 

or  some  other  equally  potent  reason.*-    And  the  return  of  the 

N.  W.   (Xeb.)    63.     Where  the  order  4o  Creditors  v.  Search,  3  W.  L.  M. 

of  sale   in  a  foreclosure   proceeding  (Ohio),  202. 

is    re.crular,    the    sheriff    may    com-  4i  Miller  v.  Loving,  59   Kan.  485, 

plete  the  execution,  or  order  of  sale,  53  Pac.   476. 

after   his   term.     National   v.  Proc-  42  Woolcott      v.      Heminger,      96 

tor,  91   X.  W.    (Xeb.)    525.  iX.     W.      (Xeb.)      12;      Kearney    v. 

Aspinwall,    63    X.    W.    (Neb.)    826. 


§  147  MER wine's  trial  of  title  to  land.  132 

appraisers  is  prima  facie  evidence  of  the  facts  therein  set 
forth,  even  where  the  certificate  fails  to  show  them  to  be  dis- 
interested householders.*^ 


Sec.  147.     Parol  evidence  may  be  introduced  to  show  mistake 
in  appraisement — Appraisement  set  aside,  when. 

At  any  time  before  the  confirmation  of  sale,  the  fact  that 
the  appraisement  was  not  made  upon  actual  view,  or  if  the 
statutory  requirements  as  to  the  appraisement  have  not  been 
complied  with,  may  be  proved  by  parol,  and  the  appraisement 
may  be  set  aside.'"^ 

In  an  action  in  the  probate  court  by  an  administraror  to 
sell  the  lands  of  his  intestate  to  pay  the  debts,  and  a  mistake 
occurred  in  the  return  of  the  appraisement,  by  which  it 
appeared  one  parcel  of  the  land  to  be  sold  had  been  ap- 
praised with  an  adjoining  tract  of  surface,  whereas,  in  fact, 
said  parcel  had  been  appraised  with  a  tract  of  coal  land. 
The  mistake  was  afterwards  carried  into  the  deeds  made  by 
the  administrator  conveying  to  different  purchasers,  the  lands 
by  them  respectively  purchased.  The  results  of  these  mistakes 
were  such  that  the  parcel  so  appraised  and  conveyed  to  the 
purchaser  of  the  adjoining  tract  of  surface  who  had  neither 
bought  nor  paid  for  it,  instead  of  to  the  purchaser  of  the  coal 
tract,  who  had  done  both.  The  latter  went  into  possession 
of  it,  and,  afterwards,  an  action  was  brought  by  the  heirs 
of  the  purchaser  in  whose  deed  the  lands  had  been,  by  mis- 
take, included,  to  recover  possession  of  the  same  from  the 
real  purchaser,  and  the  latter,  by  cross-petition,  set  forth  the 
mistake  in  the  proceedings  of  the  probate  court,  as  well  as 
that  in  the  deed,  and  prayed  for  the  correction  of  both  mis- 
takes. The  plaintiff  took  issue,  by  a  reply  upon  the  aver- 
ments of  the  cross-petition,  respecting  the  mistakes  in  both 
pleadings.  It  was  held  that  a  court  possessing  general  juris- 
ts lowa  V.  Wliistler,  87  K  W.  son,  3  Ohio,  272;  Speller  v.  Nye, 
538.  16   Ohio,   16,  563. 

4*  Creditors  v.  Search,  3  W.  L.  M. 
(Ohio),   320;    Matthews   v.   Thomp- 


133  REAL   ESTATE    UNDER   EXECUTION. — SALE.  §  148 

diction  in  equity,  was  authorized  to  correct  the  mistake  in 
the  proceedings  of  the  probate  court  as  well  as  in  the  deed, 
and  that  parol  evidence  was  admissible  on  issue  respecting 
the  mistake.^^ 

In  all  of  the  cases  of  this  character,  the  courts  have  been 
careful  to  say  that  there  was  no  intention  to  depart  from  the 
well-established  doctrine  that  the  title  of  a  purchaser  at  a 
judicial  sale,  who  has  paid  the  consideration  for  his  property, 
cannot  be  attacked  collaterally,  for  irregularities. 

In  the  above  case,  the  syllabus  of  which  has  been  quoted 
the  court  in  its  opinion,  was  careful  to  say  that  all  courts 
whose  powers  are  invoked  to  correct  mistakes  alleged  to 
exist  in  the  original  records,  should  exercise  those  powers  with 
due  regard  for  the  stability  of  the  judgments,  and  should 
require  the  mistake  to  be  established  by  clear  and  convincing 
evidence  before  granting  relief  upon  that  ground.*" 

Sec.  148.     The  sale  may  be  made  without  appraisement,  when. 

The  statute  provides  that  if  the  words,  "Appraisement 
waived,"  or  other  words  of  similar  import,  be  inserted  in 
any  deed,  mortgage,  bond,  note,  bill  or  written  contract  there- 
after made,  any  court  rendering  judgment  thereon,  must  order 
as  part  of  the  judgment,  that  the  same,  and  any  process 
issued  thereon,  shall  be  enforced,  and  that  lands  and  tene- 
ments may  be  sold  thereunder,  without  appraisement ;  and 
such  judgment,  and  any  process  issued  thereon,  shall  be  en- 
forced, and  sale  of  lands  and  tenements  made  thereunder, 
without  any  appraisement  or  valuation  being  made  of  the 
property,  to  be  sold :  Provided,  that  no  order  of  sale  or  execu- 

•*5  Syllabus    in    Gill   v.    Pelky,    54  report   of    sale,    such    mistake   may 

O.  S.  349.     "The  title  of  a  purchaser  be    corrected    in    equity    after    con- 

at    a    judicial    sale,    as    a    general  firmation    and    deed    in    pursuance 

rule,  cannot  be  impeached  in  equity,  thereof.      And    parol    evidence    may 

for   errors   or    irregularities    in    the  be  admitted  to  prove  such  mistake-" 

proceedings.     But  where  a  tract  of  Cites  v.  Widener,  35  0.  S.  555. 

land   sold,   for   which  no  considera-  46  Gill    v.    Pelky,    54    O.    S.    349; 

tion   was    paid,    or    intended    to   be  Heads  v.  Simms,  29  Ind.  574. 
conveyed,    is,    by    mistake,     in     the 


§  149  merwine's  trial  of  title  to  land.  134 

tion  shall  be  issued  upon  such  judgment  until  the  expiration 
of  six  months  from  the  time  of  the  rendition  of  said  judg- 
ment.*^ 

Where  an  instrument  being  foreclosed  recites  that  the  real 
estate  therein  described  may  be  sold  without  appraisement, 
or  not,  at  the  option  of  the  mortgagee,  and  an  order  is  made 
without  objection,  directing  the  sale  without  the  stay  of  the 
statute,  it  was  held  not  error  as  against  the  mortgagor.**  The 
omission  of  the  order  to  state  whether  the  sale  is  to  be  made 
with  or  without  appraisement,  but  directing  the  sale  according 
to  law,  and  the  sale  is  made  without  appraisement,  such  sale 
will  stand.*^ 

Sec.  149.     The  return  of  the  appraisement. 

The  officer  receiving  such  return  must  forthwith  deposit  a 
copy  thereof  with  the  clerk  of  the  court  from  which  the  writ 
issued,  and  advertise  and  sell  such  property,  agreeably  to  the 
provisions  of  this  chapter.^" 

The  reason  for  re(]uiring  a  copy  of  the  appraisement  to  be 
filed  with  the  clerk,  is,  because  his  office  is  the  only  accessible 
place  where  creditors,  attorneys  and  buyers  can  learn  what 
the  appraisement  is.  And  knowledge  of  this  is  essential  to 
enable  them  to  determine  whether  they  wall  buy  at  the  sale.'^ 

At  all  times  prior  to  the  appraisement  and  sale  of  real 
estate,  a  strict  compliance  with  the  statute  regulating,  levying, 
appraisement,  advertisement  and  sale,  will  be  required  be- 
cause it  must  be  presumed  that  a  failure  has  been  prejudicial 


47  Snyder,    5,978 ;    Wilson,    4,644 ;  identical.      Where    the    sheriff    files 

Kansas,     453a      (1889),     identical;  the     return    after     advertising    the 

but    see    Bashore    v.    Xordyke,    25  sale,  but  the  sale  is  regularly  made 

Kan.   222,  on  the  date  advertised,  it  would  be 

*8  Clay     V.     Hildebrand,     9     Pac.  error   for  the  court  to  set  the   sale 

(Kan.)    466.  aside    because    the    return   was    not 

49  Northrup    v.    Cooper,    23    Kan.  filed    before    the    sheriff    began    to 
432.  advertise.     Moore  v.   Pye,    10   Kan. 

50  Snyder,    5,979;    Wilson,    4,645;  247. 

Kansas,     453b      (1901),      identical;  si  Creditors  v.  Search,  3  W.  L.  M. 

Ohio  Gen.  Code,  Sec.  11,673   (1910),  (Ohio),  320;  Gwyn  on  Sheriffs,  318. 


135  RBAL   ESTATE   UNDER   EXECUTION. ^SALE.         §§150,151 

to  the  debtor  or  creditor,  since  it  cannot  be  known  how 
many  bidders  have  been  lost  by  noncompliance  with  the  law.^- 
In  most  courts  in  Ohio,  the  written  appraisement,  signed  by 
the  appraisers,  is  not  made  part  of  the  complete  record,  and 
it  does  not  appear  in  the  chain  of  title,  or  any  record  of  the 
case  except  the  recitals  in  the  sheriff's  return  of  his  pro- 
ceedings under  the  writ.  The  appraisal  papers  are  kept  on 
file  in  the  clerk's  office,  and  are  not  found  in  the  jacket  with 
the  other  papers  on  file  in  the  case  to  be  entered  either  in 
the  journal  or  complete  record  thereof. 

Sec.  150.  The  land  cannot  be  sold  for  less  than  two-thirds  of 
the  appraised  value— Exceptions  as  to  claims 
due  State. 

If,  upon  such  return,  as  aforesaid,  it  appear,  by  the  inqui- 
sition, that  two-thirds  of  the  appraised  value  of  said  lands 
and  tenements,  so  levied  upon  is  sufficient  to  satisfy  the 
execution,  with  costs,  the  judgment  on  which  such  execution 
issued,  will  not  operate  as  a  lien  on  the  residue  of  the  debtor's 
estate  to  the  prejudice  of  any  other  judgment  creditor;  but 
no  such  property  shall  be  sold  for  less  than  two-thirds  of  the 
value  returned  in  the  inquest;  and  nothing  in  this  section 
contained  can,  in  any  wise,  extend  to  affect  the  sale  of  lands 
by  the  State,  but  all  lands,  the  property  of  individuals  in- 
debted to  the  State  for  any  debt  or  taxes,  or  in  any  other 
manner,  can  be  sold  without  valuation,  for  the  discharge  of 
such  debt  or  taxes,  agreeably  to  the  laws  in  such  cases  made 
and  provided.^^ 

Sec.  151.    The  property  of  certain  officers  sold  without  ap- 
praisement. 

If  the  property  of  any  clerk,  sheriff,  justice  of  the  peace, 
constable,  or  any  collector  of  State,  county,  town  or  township 

52  Creditors  V.  Search,  3  W.  L.  M.  Ohio  Gen.  Code,  Sees.  11,674  and 
(Ohio),  320;  Whitehead  v.  Post,  11,675  (1910),  identical;  Capital 
3  W  L  M. '(Ohio),  195;  Craig  v.  v.  Huntoon,  35  Kan.  577,  11  Pac. 
Fox,   16   Ohio,  563.  369;  DeJarnette  v.  Verner,  40  Kan. 

53  Snyder,    5,980;    Wilson,    4,646;  310,  19  Pac.  666. 
Kansas,     4,903      (1901),     identical; 


§  152  merwine's  trial  of  title  to  land.  136 

tax,  be  levied  on,  for,  or  on  account  of,  any  moneys  that  now 
are,  or  may  hereafter  be,  by  them  collected  or  received  in 
their  official  capacity,  the  property  so  levied  on  may  be  sold 
without  valuation/* 


Sec.  152.     The  legal  notice  of  sale  under  the  execution. 

Lands  and  tenements  taken  on  execution  cannot  be  sold 
until  the  officer  cause  public  notice  of  the  time  and  place  of 
sale  to  be  given,  for  at  least  thirty  days  before  the  day  of 
sale,  by  advertisement  in  some  newspaper  printed  in  the 
county,  or,  in  case  no  newspaper  be  printed  in  the  county,  in 
some  newspaper  in  general  circulation  therein,  and  by  putting 
up  an  advertisement  upon  tlie  courthouse  door,  and  in  five 
other  public  places  in  the  county,  two  of  which  shall  be  in  the 
township  where  such  lands  and  tenements  lie.  All  sales 
made  without  such  advertisement  shall  be  set  aside,  on  motion, 
by  the  court  to  which  the  execution  is  returnable.^^ 

The  statute  nowhere  requires  that  the  legal  notice  of  the 
sale  should  state  either  the  name  of  the  execution  debtor  or 
creditor,  and  when  there  is  an  omission  from  such  notice  of 
their  names,  it  will  not  affect  the  validity  of  the  sale.^** 

The  sale  will  not  be  disturbed  because  the  notice  fails  to 
state  the  exact  hour  of  the  sale ;  ^^  nor  will  the  sale  be  dis- 
turbed   because    in    the    notice    of    publication    a    defendant, 


B4  Snyder,    5,981;    Wilson,    4,647;  only    in    case    where    no    newspaper 

Ohio  Gen.  Code,  Sec.  11,080   (1910),  is  printed  in  the  county.    McLaugh- 

identical.  lin    v.    Houston,    120    Pac.     (Okla.) 

55  Snyder,    5,982 ;    Wilson,    4,G48 ;  659. 
Kansas,     1,905      (1901),     identical;  so  McLean  v.   Kelly,   11   Okla.   26, 

Nebraska,    1,498     (1907),    identical.  66   Pac.    282;    Chapman   v.   Merrill, 

Xotice    in    daily    legal    news    suffi-  19  Hun,  318;   Harrison  v.  Cochelm, 

cient.     Hester  v.   Coldron,   116  Pac.  35  Mo.  79. 

(Okla.)     787;     Railton    v.     Laeder,  5- Xorthrup    v.    Cooper,    23    Kan. 

126   111.   219;    18   N.   E.   555;    Lynn  432.     In  this  case  the  notice  stated 

V.  Allen,  145  Ind.  584,  44  N.  E.  646.  the    sale    to    he   between    the    hours 

Since    writing    the    above    the    Su-  of     ten     o'clock     a.     m.     and     four 

preme  Court  of   this   State  has   de-  o'clock  p.  m.  of  a  specific  day. 
cided   that   the   posting   is   required  »- 


137 


REAL   ESTATE    UNDER   EXECUTION. — SALE. 


§152 


whose  name  was  Elizabeth  D.  Borthwick,  was  described  as 
Elizabeth  D.  Bothwick.^^ 

In  computing  the  time  in  which  the  notice  is  to  be  pub- 
lished, the  statutory  rule  of  this  State,  that  the  day  of  the 
first  publication  is  to  be  excluded,  and  the  last  included, 
obtains.  The  words,  "for  at  least  thirty  days  before  the  day 
of  sale,"  does  not  change  the  rule.^^  If  one  issue  of  the  paper 
within  the  statutory  time  required  does  not  contain  the 
notice  of  sale,  the  sale  may  be  avoided.''"  If  the  newspaper 
is  a  weekly,  then  it  must  contain  the  notice  each  week,  and 
each  successive  week ;  if  a  daily,  then  in  one  publication  each 
successive  week.''^  The  legal  sale  will  be  sufficient  even  where 
the  newspaper  is  published  in  the  county,  but  partly  printed 
in  another.*'^  A  very  interesting  case  will  be  found  in  the 
note  below  as  to  a  change  in  the  notice  while  in  the  process 
of  publication.''^  A  decree  ordered  that  land  be  sold  in  sep- 
arate parcels  and  the  notice  of  the  sale  did  not  so  state.  The 
sale   was  sustained.^*     But  Avhere   the   sheriff's  return   failed 


58  Harrel  v.  Xeef,  80  Kan.  348, 
102  Pac.  838. 

59  Northrup  v.  Cooper,  23  Kan. 
432;  Atchison  v.  Bobb,  24  Kan. 
480;  English  v.  Williamson,  34 
Kan.  215,   8  Pac.   214. 

60  Ronsaville  v.  Hazen,  5  Pac. 
771,  33  Kan.  149;  Trepiton  v. 
Busse,   10  Kan.  170. 

01  Stevens  v.  Xaylor,  106  N.  W. 
(Neb.)    446. 

62  Aetna  v.  Wortaseuski,  88  X.  W. 
(Xeb.)    855. 

63  "In  pursuance  of  a  judgment 
of  foreclosure,  certain  real  estate 
was  ordered  to  be  sold.  A  notice 
Avas  published  by  the  sheriff  in  a 
daily  paper  that  the  sale  would 
occur  on  March  9,  1889,  and  the 
notice  was  published  in  every  issue 
of  the  paper  from  February  6,  18S9, 
to  March  8,  18S9,  inclusive,  except 
in    the    issues    of   March    6    and    7, 


1889.  In  each  of  those  issues  the 
figure  9  in  the  notice  had  been 
taken  out  and  turned  upside  down, 
so  as  to  somewhat  resemble  the 
figure  6.  It  was  found  that  the 
alteration  in  the  notice  was  caused 
or  procured  to  be  made  by  the 
defendant,  whose  property  was  ad- 
vertised to  be  sold,  for  the  purpose 
of  avoiding  the  sale.  Held,  on  a 
motion  of  the  defendant  to  set  aside 
the  sale  by  reason  of  the  defective 
notice,  that  a  party  guilty  of  such 
misconduct  is  not  in  a  position  to 
appeal  to  the  court  for  assistance 
in  consummating  the  wrong,  and 
that  the  court  will  not  aid  him  in 
reaping  the  anticipated  fruits  of 
Ills  wrongful  conduct."  Green  v. 
Carson,  50  Kan.  624,  32  Pac.  380. 
84  Fraser  v.  Seely,  71  Kan.  169, 
79   Pac.   1,081. 


§§153,154         merwine's  trial,  of  title  to  land.  138 

to  show  when  or  for  what  length  of  time  he  had  advertised  the 
sale,  the  sale  was  voidable.®^ 

A  sale  of  lands  made  by  a  sheriff  on  a  day  not  named  in  the 
notice  is  illegal,  and  should  be  set  aside  notwithstanding  the 
fact  that  the  day  named  fell  on  Labor  Day  and  the  sale  was 
held  on  the  day  following.*'*' 

Sec.  153.  The  sheriff's  return  of  his  proceedings  under  the 
writ. 

Every  court  has  inherent  power  to  correct  its  own  pro- 
ceedings and  records  during  the  terra  at  which  they  were 
made.  If  the  sheriff's  return  does  not  speak  the  truth  as  to 
the  facts  of  the  sale,  the  court  may  make  such  amendments  as 
will  make  it  do  so."^  The  court,  instead  of  amendment,  may, 
in  a  proper  case,  vacate  and  set  aside  such  sale.®^ 

The  sheriff's  return  that  the  property  was  sold  by  him  at 
public  auction  implies  that  it  was  disposed  of  to  the  highest 
bidder,  and  a  sheriff's  notice  of  sale,  which  did  not  recite 
that  the  lands  would  be  sold  in  separate  parcels,  was  held  to 
be  sufficient,  although  the  decree  and  order  of  sale  provided 
for  several  tracts  to  be  sold  separately."^ 

Sec.  154.     Confirmation  and  approval  by  the  court  of  sheriff's 
sale  of  real  estate. 
If  the  court  upon  the  return  of  any  writ  of  execution,  for 
the  satisfaction  of  which  any  lands  or  tenements  have  been 

«5  Atchinson    v.    Sledge,    68    Kan.  the  property  was   sold  for  'cash  in 

321,  74  Pac.  1,111.  hand.'        The      judgment      creditor 

68  McLaughlin     v.     Houston,     120  moved  to  confirm  the  sale,  and,  on 

Pac.   (Okla.)    659.  the   hearing,    it   appeared    that    the 

67  Payne  v.  Long,  9  Okla.  683,  purchaser  paid  nothing  but  the 
6  Pac.  235.  costs.       The     sale     was     confirmed. 

68  Osborne  v.  Hughery,  14  Okla.  Held,  that  the  plaintiff,  the  judg- 
29,  76   Pac.   146.  ment    creditor,    was    estopped    from 

69  Eraser  v.  Seely,  71  Kan.  838,  claiming  that  the  judgment  debt 
79  Pac.  1,081.  "A  judgment  cred-  was  not  satisfied  to  the  extent  of 
itor  was  represented  at  the  sheriff's  the  bid  returned  by  the  sheriff,  and 
sale  by  her  attorney.  The  debtor's  that  the  debtor  was  not  preju- 
land  was  bid  in  by  a  second  mort-  diced."      Ihid. 

gagee.      The    sheriff    returned    that  » 


139  REAL    ESTATE    UNDER    EXECUTION. SALE.  §  154 

sold,  shall,  after  having  carefully  examined  the  proceedings 
of  the  officer,  be  satisfied  that  the  sale  has,  in  all  respects, 
been  made  in  conformity  to  the  provisions  of  this  chapter,  the 
court  shall  direct  the  clerk  to  make  an  entry  on  the  journal 
that  the  court  is  satisfied  of  the  legality  of  such  sale,  and  an 
order  that  the  officer  make  to  the  purchaser  a  deed  for  such 
lands  and  tenements;  and  the  officer  on  making  such  sale 
may  retain  the  purchase  money  in  his  hands  until  the  court 
shall  have  examined  his  proceedings,  as  aforesaid,  when  he 
shall  pay  the  same  to  the  person  entitled  thereto,  agreeably 
to  the  order  of  the  court.'" 

This  confirmation  relates  back  to  the  sale."^  And  where  a 
reasonable  bidder  at  such  sale  assigns  his  bid,  such  assignee 
has  the  right  by  motion,  to  require  the  confirmation  of  the 
sale,  and  in  such  case,  the  judgment  creditor  has  no  right  to 
defeat  the  confirmation  and  approval  of  the  sale.'-  Where  the 
sale  has  been  regular  in  every  respect,  but  the  property  was 
sold  for  a  price  that  was  grossly  inadequate,  the  sale  will 
not  be  disturbed.'^  In  execution  sales  of  real  estate,  anyone 
who  claims  to  be  the  owner  thereof,  or  has  an  interest  in 
defeating  the  title,  may,  though  not  a  party  to  the  suit,  move 
the  court  to  set  aside  the  sale.'*  The  return  being  regular,  it 
is  the  duty  of  the  court  to  confirm  the  same,  and  the  court 
may  confirm  the  sale  even  where  the  sheriff  does  not  consent 
to  such  confirmation.  The  court  may  confirm  the  sale  on  its 
own  motion. ^^      The   sale   is   not   consummated   so   as   to   vest 


70  Snyder,  5,983;  Wilson,  4,649;  222,  47  Pac.  175;  Xorthrup  v. 
Kansas,      458       (1889);      Nebraska,  Cooix'r,  23  Kan.  433. 

1,500    (1907),   identical;    Ohio   Gen.  74  Sparks    v.    City,    21    Okla.    827, 

Code,      Sees.      11,088      and      11,089  D7  Pac.  575;   White  Crow  v.  White 

(1910),  identical.  Wing,     3     Kan.     276;     Harrison    v. 

71  Christy  v.  Springs,  11  Okla.  Andrews,  18  Kan.  537;  Branner  v. 
710,   69  Pac.  804.  Chapman,    11    Kan.    118;     Foreman 

72  Payne  v.  Long,  9  Okla.  683,  v.  Carter,  9  Kan.  674;  Halsey  v. 
60   Pac.   235.  Van  VIeet,  29  Kan.   501. 

73  McLean  v.  Swofford,  11  Okla.  75  Adams  v.  DeValley,  40  Kan. 
429,  68  Pac.  502;  but  see  Pickett  486,  20  Pac.  239;  Ferguson  v.  Tutt, 
V.  Pickett,  31  Kan.  727,  3  Pac.  549;  8  Kan.  370. 

Wilford    V.    Milford,    5    Kan.    App. 


§  155  merwine's  trial  of  title  to  land.  140 

the  title  in  the  x3urchaser  until  the  confirmation/"  The  court 
is  not  required,  on  motion  for  confirmation,  to  go  into  the 
judgment,  or  execution,  further  than  is  necessary  to  determine 
whether  the  officer  has  properly  performed  his  duty  under  the 
writ,  nor  is  the  court  permitted  to  decide  on  the  validity  of 
either.  The  order  of  confirmation  is  an  adjudication  merely 
that  the  proceedings  of  the  ofificer,  as  they  appear  of  record, 
are  regular,  and  the  direction  to  the  sheriff  to  complete  the 
sale."  If  the  return  of  the  officer  show  prima  facie  that  all 
the  requisites  of  the  statute  have  been  complied  with,  the  sale 
should  be  confirmed,  and  a  motion  cannot  be  resisted  except 
on  the  face  of  the  papers.'^*  No  formal  motion  in  writing  is 
required  to  set  aside  the  sale.^^  It  is  proper  for  the  court  to 
examine  the  evidence,  setting  forth  the  proceedings,  especially 
in  a  case  where  the  officer's  return  is  not  contradicted.^" 

Sec.  155.  When  objection  to  the  confirmation  of  sale  should 
be  made. 
It  is  well  to  observe  here  that  there  is  a  different  rule  for 
the  action  of  the  court  where  objection  is  made  prior  to  the 
confirmation  of  the  sale  of  real  estate,  and  where  objection 
is  made  to  such  irregularities  after  the  confirmation.  Wliere 
objection  is  made  to  any  irregularity  in  the  proceed- 
ings prior  to  the  confirmation,  the  court  may  exercise  a  sound 
and  legal  discretion ;  *^  but  an  entirely  different  rule  applies 
where  application  is  made  to  set  aside  the  sale  after  con- 
firmation. Here  the  court  must  see  to  it  that  the  judgments 
and  orders  of  the  court  are  not  attacked  collaterally.^^     So 

76  Johnson    v.    Lindsay,    27    Kan.  0.  S.  370;  Ohio  v.  Goodin,  10  0.  S. 

514.  566;    Crag    v.    Fox,    16    Ohio,    564; 

77Kohle:-  v.  Ball,  2  Kan.   160.  Fidelity    v.     Disederaus,    26    0.    S. 

78  White    Crow    v.    White    Wing,  314;  Reed  v.  Radigan,  42  0.  S.  292. 
3  Kan.  276.  82  in  the  following  cases  the  irreo- 

79  White    Crow    v.    Wliite    Wing,  ularities  in  the  proceedings  leading 
3   Kan.  276.  np  to  the  confirmation  of  sale  were 

80  Kutter    v.     Bnishout,     4    Kan.  cured    by    the    confirmation    of    the 
120.  sale    and    the    delivery   of   the   deed 

81  Lemert     v.      Clark,      1      C.     C.  to    the     purchaser     by    the     sheriff 
(Ohio),    571;    Miles    v.    Parks,    49  Crag  v.   Fqx,   16   Ohio,  563;   Mayer 


141  REAL   ESTATE    UNDER   EXECUTION. SALE.  §  156 

important  is  this  matter  of  confirmation  of  sale  that  the 
sheriff's  deed  will  not  give  title  to  the  purchaser  at  a  judicial 
sale  if  the  sale  has  not  been  confirmed  as  required  by  the 

statute.* 

Sec.  156.    The  irregularities  that  are  and  are  not  corrected  by 
the  confirmation — The  procedure. 

Mere  irregularity  in  the  proceedings  connected  with  a 
sheriff's  sale  are  cured  by  order  of  court,  made  some  con- 
siderable time  after  confirming  the  sale;  but  matters  which 
are  not  mere  irregularity,  or  which  form  no  part  of  the  pro- 
ceedings connected  with  the  sale,  or,  for  instance,  fraudulent 
combinations  which  might  prevent  a  fair  and  equitable  sale, 
and  matters  relative  to  the  ownership  of  the  property  sold, 
are  not  cured,  or  finally  or  conclusively  determined  by  the 
order  confirming  the  sale. 

Irregularity  affecting  a  sheriff's  sale  may  be  examined  in 
the  district  court  on  motion  to  confirm  the  sale  or  set  aside 
the  sale.  Some  of  the  irregularities  may  also  be  re-examined 
in  the  district  court  by  procedure  under  the  statute;  and  all 
such  irregularities,  so  far  as  they  are  shown  by  the  record, 
may  be  re-examined  by  petition  in  error  in  the  Supreme 
Court;  and  in  some  particular  cases  of  fraud  and  irregu- 
larity, parties  may  have  an  action  in  the  district  court,  in  the 
nature  of  a  suit  in  equity  to  set  aside  the  sheriff's  sale,  and 
for  such  other  and  further  relief  as  justice  and  equity  may 
authorize.  But  whatever  remedy  the  aggrieved  party  may 
choose,  he  must  resort  to  the  same  within  proper  and  reason- 
able time.^^ 

The  sale  may  not  be  set  aside  where  land  is  advertised 
to  be  sold  for  cash  in  pursuance  of  a  judgment  of  foreclosure, 
and  the  sheriff  accepts  a  certified  check  as  cash,  which  is 
afterwards  paid,  the  acceptance  of  the  certified  check  for 
cash  is  not,  of  itself,  a  sufficient  reason  to  defeat  the  sale.«* 

V.  Wick,    15   O.   S.    o48;    Lemert   v.  83  Capital    v.    Huntoon,    35    Kan. 

Clark,    1   C.   C.    (Ohio),   571.  577,   11   Pac.   369. 

*  Lessee  v.  Norton,  1  Ohio,  278.  s*  Sheldon  v.   Preussner,   52  Kan. 

593,  35   Pac.   204. 


§156 


MER wine's   trial    OF   TITLE    TO    LAND. 


142 


Where  there  was  mere  inadequacy  in  price,  or  where  the 
newspaper  containing  the  sale  notice,  though  circulated  to 
all  the  subscribers,  failed  to  reach  the  publishers  of  other 
papers  to  whom  it  was  sent  in  exchange ;  *  where  the  proceed- 
ings prior  to  and  at  a  sheriff's  sale  of  real  estate  were  regu- 
lar, and  in  conformity  with  the  foreclosure  judgment,  and 
no  extrinsic  facts  affecting  the  validity  of  sale  were  shown  in 
support  of  the  motion  to  set  the  same  aside,  it  was  held  error 
to  sustain  said  motion ;  ^°  it  has  been  held  that  wliile   mere 


*  Cowlos  V.  Phoenix,  63  Kan.  883, 
65  Pac.   217. 

8"'  Condon  v.  Wood,  7  Kan.  App. 
577,  52  Pac.  63.  The  judgment  of 
a  district  court  foreclosing  a  mort- 
gage on  real  estate,  in  which  ap- 
praisement was  waived,  directed 
that  no  order  of  sale  should  be 
issued  to  enforce  it  until  the  ex- 
piration of  six  months  after  the 
day  it  was  entered.  Six  days  before 
the  expiration  of  that  time,  an 
order  of  sale  was  issued  to  the 
sheriff,  who,  after  the  expiration 
of  six  months  from  the  entry  of 
the  judgment,  advertised  and  sold 
the  mortgaged  premises  without 
appraisement  to  the  mortgagee  and 
plaintiff  in  the  judgment.  The 
sheriff  made  return  of  his  proceed- 
ings under  the  order,  and  the  court 
afterwards  confirmed  the  sale  and 
directed  a  deed  to  be  executed  to 
the  purchaser,  which  was  done.  No 
proceedings  have  been  taken  by 
the  defendants  in  the  judgment  to 
set  aside  the  order  of  sale  or  the 
proceedings  under  it,  nor  have  pro- 
ceedings been  taken  to  reverse, 
vacate,  or  set  aside  the  order  con- 
firming the  sale.  Soon  after  the 
execution  and  delivery  of  the 
sheriff's  deed,  the  purchaser,  with- 
out objection  from  the  defendants 
in    the    judgment,    took    possession 


of  the  mortgaged  premises  and  has 
ever  since  been  in  possession  of 
them.  After  the  execution  of  the 
m.ortgage,  and  before  the  commence- 
ment of  the  suit  to  foreclose  it, 
the  mortgagors  conveyed  to  C  their 
interest  in  a  portion  of  the  mort- 
gaged premises,  and  she  was  not 
made  a  party  to  the  foreclosure 
suit.  Held:  (1)  That  although 
this  order  of  3ale  was  prematurely 
issued,  the  proceedings  of  the 
sheriff  under  it,  taken  after  six 
months  from  the  date  of  the  judg- 
ment, were  not  void,  but  both  the 
order  of  sale  and  the  proceedings 
under  it  were  voidable,  and  could 
have  been  set  aside  in  the  court  in 
which  the  judgment  was  entered, 
by  proceedings  for  that  purpose  by 
the  defendants  in  the  judgment, 
taken  at  any  time  before  the  con- 
firmation of  the  sale.  (2)  That 
after  the  confirmation  of  the  sale 
so  made  the  order  of  sale  and  all 
proceedings  under  it  must  be  held 
legal  and  valid,  and  further,  that 
the  deed  executed  to  the  purchaser 
at  the  said  sale,  conveyed  to  him 
all  of  the  title  and  interest  of  the 
mortgagors  to  the  premises  de- 
scribed in  the  mortgage  and  judg- 
ment. (3)  That  the  right  of  C 
in  that  portion  of  the  mortgaged 
premises    conveyed    to    her    by    the 


143 


REAL   ESTATE   UNDER   EXECUTION. — SALE. 


§156 


inadequacy  of  price  alone  is  not  sufficient  to  justify  a  court 
in  setting  aside  a  sheriff's  sale  of  real  estate,  yet,  when  the 
equities  of  the  party  moving  to  set  aside  the  sale  are  strong, 
and  it  fairly  appears  that  such  party  was  prevented  by  acci- 
dent and  mistake,  and  without  negligence,  from  attending 
the  sale,  the  ruling  of  the  court  setting  aside  the  sale,  on 
condition  that  a  reasonable  bid  be  made  at  a  resale,  will  not 
be  disturbed.^®  The  sale  will  be  set  aside  where  the  lands  are 
sold  at  a  sheriff's  sale  for  a  price  so  grosslj^  inadequate  as 
to  be  little  more  than  a  nominal  consideration,  and  there  is  a 
very  slight  additional  circumstance  indicative  of  bad  faith  on  the 
part  of  the  bidders,  or  of  a  combination  among  bidders ;  ^'^ 
and  also  where  interested  parties  attack  the  title  of  property 
offered  at  a  judicial  sale  in  such  a  way  as  to  deter  bidders  and 
depress  values,  and  where  the  price  paid  for  the  property  is 
greatly  inadequate.*^ 


mortgagors  was  a  right  to  redeem 
the  land  so  conveyed  from  the 
lien  of  the  mortgage,  and  as  she 
Avas  not  a  party  to  the  foreclosure 
suit,  the  right  was  in  no  way 
affected  by  the  foreclosure  and  sale. 
Cross  V.  Knox,  33  Kan.  725,  5 
Pac.    32. 

86  Xolfert  V.  Milford,  5  Kan.  App. 
222. 

87  lona  V.  Blair,  56  Kan.  430, 
43  Pac.  686.  ^Yhile  the  judgment 
debtors  are  ordinarily  necessary 
parties  in  this  court  to  a  review 
of  the  rulings  of  the  district  court 
confirming  or  setting  aside  a  sale 
of  lands  under  a  decree  of  fore- 
closure, where  the  sale  is  for  a 
grossly  inadequate  price,  and  one 
of  the  plaintiffs  in  error  offers  to 
bid  many  times  the  amount  for 
which  the  land  was  sold,  and  the 
sale  was  made  prior  to  the  passage 
of  the  Act  of  1893,  known  as  the 
"Redemption  Law,"  so  that  it  can 
be  clearly   seen  that   no  injury  can 


result  to  the  judgment  debtors, 
the  rulings  of  the  district  court 
may  be  reviewed  without  their  hav- 
ing been  made  parties.     Ihid. 

88  Wood  V.  Drury,  56  Kan.  409, 
43  Pac.  763.  A  return  of  a  sheriff 
on  an  order  for  tlie  sale  of  land, 
which  fails  to  show  that  notice  of 
the  sale  for  the  time  and  in  the 
manner  required  by  law  was  duly 
given,  is  irregular;  and  the  irreg- 
ularity is  not  entirely  cured  by 
an  accompanying  affidavit  of  the 
printer  showing  the  essential  facts 
omitted  from  the  return.  Where 
the  sale  was  made  at  a  wholly  in- 
adequate price,  it  is  error  to  con- 
firm it  on  such  defective  return. 
59  Kan.  160,  52  Pac.  419.  Where 
an  execution  was  issued  July  10, 
1860,  and  a  sale  of  real  estate  made 
under  it,  held,  that  under  the  Act 
of  February  27,  1860,  entitled,  "An 
act  relating  to  sales  of  real  prop- 
erty," absence  in  the  sheriff's  return 
of  evidence  that  at  least  five  days' 


§  157  MERWINE  'S    TRIAL    OF    TITLE   TO   LAND.  144 

Sec.  157.     The  sheriff's  deed  to  the  purchaser. 

The  sheriff,  or  other  officer,  who,  upon  such  writ  or  writs 
of  execution,  shall  sell  said  lands  and  tenements,  or  any 
part  thereof,  shall  make  to  the  purchaser  as  good  and  suffi- 
cient deed  of  conveyance  of  the  lands  sold  as  the  person  or 
persons,  against  whom  such  writ  or  writs  of  execution  were 
issued,  could  have  made  of  the  same,  at,  or  any  time  after 
they  became  liable  on  the  judgment.  The  deed  shall  be 
sufficient  evidence  of  the  legality  of  such  sale,  and  the 
proceedings  therein,  until  the  contrary  is  proved,  and  shall 
vest  in  the  purchaser  as  good  and  as  perfect  an  estate  in  the 
premises  therein  mentioned  as  was  vested  in  the  party,  at,  or 
after,  the  time  when  such  lands  and  tenements  became  liable 
to  the  satisfaction  of  the  judgment.  And  such  deed  of  con- 
veyance, to  be  made  by  the  sheriff  or  other  officer,  shall 
recite  the  execution  or  executions,  or  the  substance  thereof, 
and  the  names  of  the  parties,  the  amount  and  date  of  rendi- 
tion of  each  judgment  by  virtue  whereof  the  said  lands  and 
tenements  were  sold,  as  aforesaid,  and  shall  be  executed, 
acknowledged  and  recorded  as  is  or  may  be  provided  by  law 
to   perfect   the   conveyances   of  real   estate   in   other   cases.^^ 

notice  of  sale  to  the  person  to  whom  tion,     such     recitals     are    sufficient, 

the  lands  belonged  had  been  given,  Lessee   v.    McCoy,    8    Ohio,    128.      A 

rendered    it    insufficient."      Koehler  levy   and   sale   of   land  upon  execu- 

V.  Ball,  2  Kan.  160.  tion   will   confer   title,   and   a   prior 

89  Snyder,    5,984;    Wilson,    4,650;  assignment    of    the    property    made 

Kansas,      459       (1889),      identical;  by  the  judgment  debtor  to  the  cred- 

Xebraska,    1,502    (1907),    identical;  itor  to  secure  a  debt  which  has  not 

Ohio  Gen.  Code,  Sec.  11,693    (1910),  been      acknowledged      or      recorded. 

similar.     The  acknowledgment  of  a  Fordick   v.   Barr,   2   0.    S.   471.     As 

sheriff's   deed   is   indispensable,    and  to  when   sheriff's   deed  takes  effect, 

such    acknowledgment    will    not    be  see  Zashenosky  v.  Voliaith,  59  0.  S. 

presumed.      Roades    v.    Symmes,    1  540;   Lessee  v.  Longworth,  11   Ohio, 

Ohio,      281.       Sheriff's      deed     good  236.     Mistake  in  deed  may  be  shown 

though  not  reciting  all   the   statute  by  parol.     Gill   v.   Pelky,    54   O.   S. 

requires.     Lessee  v.  Dibble,  10  Ohio,  348;   Lessee  v.  McCoy,  8  Ohio,  128. 

434.      Where    sheriff's    deed    recites  A     court     of     equity     may     correct 

so  much  of  the  execution  and  other  sheriff's    deed.      Styles   v.    Widener, 

proceedings    as    shows    clearly    the  35   0.   S.   550.     Parol  evidence  may 

nature  and  authority  for  its  execu-  be  introduced  to  show  such  mistake. 


145  REAL   ESTATE    UNDER   EXECUTION. — SALE.  §  158 

And  where  the  sheriff  seizes  real  estate  and  sells  the  same,  but 
the  sale  is  made  but  a  short  time  after  his  term  expires,  his 
deed  to  the  purchaser  will  give  such  equitable  title  that  such 
purchaser  cannot  be  ejected  from  the  premises.^" 

Sec.  158.  Printer's  fee  to  be  advanced,  when — Officer  must 
demand  same,  when. 

The  officer  who  levies  upon  goods  and  chattels,  or  lands 
and  tenements,  or  who  is  charged  with  the  duty  of  selling 
same,  by  virtue  of  any  writ  of  execution,  may  refuse  to  pub- 
lish a  notice  of  the  sale  thereof,  by  advertisement  in  a  news- 
paper, until  the  party  for  whose  benefit  such  execution  issued, 
his  agent  or  attorney,  shall  advance  to  such  officer,  so  much 
money  as  will  be  sufficient  to  discharge  the  fees  of  the  printer 
for  publishing  such  notice. 

Before  any  officer  shall  be  excused  from  giving  the  notifica- 
tion, mentioned  in  the  preceding  paragraph,  he  shall  demand 
of  the  party  for  whose  benefit  the  execution  was  issued,  his 
agent  or  attorney  (provided  either  of  them  reside  in  the 
county),  all  fees  in  said  action  specified.®^ 


Ihid.  The  purchaser  at  a  sheriff's  Kan.  278,  49  Pac.  82.  After- 
sale  acquires  no  greater  interest  acquired  title  does  not  inure  to  tlie 
than  the  judgment  debtor  had  at  benefit  of  the  purchaser.  West- 
the  time  the  levy  and  sale  was  heimer  v.  Reed,  19  N.  W.  (Neb.) 
made,  and  takes  the  property  sub-  626.  Purchasers  in  proper  case 
ject  to  outstanding  equities,  espe-  may  compel  deed  from  sheriff. 
cially  if  the  purchaser  has  notice  Lamb  v.  Sherman,  28  N.  W.  (Neb.) 
of  these  equities.  Louth  v.  Rath-  319.  Deed  will  issue  after  death  of 
bone,  19  Ohio,  21.  No  other  district  purchaser.  Cronkhite  v.  Buchanan, 
court  except  the  one  issuing  the  59  Kan.  541,  53  Pac.  863. 
writ  may  set  it  aside.  Christy  v.  so  Head  v.  Daniels,  38  Kan.  1, 
Springs,   11   Okla.  710,  69  Pac.  864.  15   Pac.   911. 

As  to  recitals  of  deed,  see  Dickens  9i  Snyder,   5.985   and  5,986;    Wil- 

V.  Crane,  33   Kan.  344,   6  Pac.   630.  son,  4,651  and  4,652;   Kansas,  4,906 

Such     deed     a     nullity     where     the  (1901),   identical;    Ohio  Gen.   Code, 

mortgage  is  paid  during  proceedings  Sec.    11,695    (1910),   similar. 
to    foreclose.      Cerly    v.    Moran,    58 


§§  159-161  merwine's  trial  of  title  to  land.  146 

Sec.  159.  Where  sale  must  take  place — Officer  or  appraiser 
may  not  purchase — Persons  in  trust  relations 
may  not  bid  at  their  own  sales. 

All  sales  of  lands  or  tenements  under  execution  must  be 
held  at  the  courthouse,  in  the  county  in  which  such  lands  or 
tenements  are  situated.  Xo  sheriff  or  other  officer  making 
the  sale  of  the  property,  either  personal  or  real,  nor  any 
appraiser  of  such  property,  can,  either  directly  or  indirectly, 
purchase  the  same,  and  every  purchase  so  made  shall  be  con- 
sidered fraudulent  and  void.°- 

A  guardian,  administrator,  executor,  assignee,  trustee,  or 
anyone  occupying  a  trust  relation  to  the  real  estate  sold  by, 
or  under  a  judicial  decree,  cannot  buy  any  real  estate  which  he 
sells  by  such  order  of  the  court.  And  the  geod  faith  or  ])ad 
faith  of  tlie  purchaser  does  not  enter  into  the  question.  AVhen 
it  comes  to  the  court  that  any  such  person  has  purchased  real 
estate  at  his  own  sale,  the  sale  will  be  set  aside  without 
further  proof. "^ 

Sec.  160.     Alias  execution. 

If  the  lands  and  tenements,  levied  on  as  aforesaid,  are  not 
sold  upon  one  execution,  other  executions  may  issue  to  sell 
the  property  so  levied  upon.^* 

Sec.  161.     Procedure  where  several  executions  acre  issued — 
Creditors  may  direct  several  levies. 
In   all   cases   where   two   or  more   executions   are  put  into 
the  hands  of  any  sheriff  or  other  officer,  and  it  is  necessary 

92  Snyder,  5,987;  Wilson,  4,653;  572;  Mitchell  v.  Dnnlap,  10  Ohio, 
Kansas,     4,908      (1901),     identical;        117. 

Xebraska,    1,505     (1907),    identical;  s*  Snyder,    5,988;    Wilson,    4,654; 

Smith  V.   Burns,   8   Kan.    198.  Kansas,     4,909      (1901),     identical; 

93  Caldwell  v.  Caldwell,  4-5  0.  S.  Nebraska,  1,506  (1907),  identical; 
513;  Barrington  v.  Alexander,  6  Ohio  Gen.  Code,  Sec.  11,697  (1910), 
0.  S.  189;  Droone  v.  Fanning,  2  identical;  First  National  v.  Farmer, 
Johns.  Ch.  252;  Sheldon  v.  Nesvton,  61  Kan.  620,  60  Pae.  324;  Rain 
3  0.  S.  495;  Piatt  v.  Longworth,  v.  Young,  61  Kan.  428,  59  Pac. 
27  0.  S.  159;  Welsch  v.  Perkins,  1,068;  Ritchie  v.  Higginbotham,  26 
8  Ohio,  52;  Riddle  v.  Roll,  24  O.  S.  Kan.    645;    Burchett    v.    Clark,    64 

^\  W.   (Neb.)    1,113. 


]^47  REAL   ESTATE   UNDER   EXECUTION. — SALE.  §  1^2 

to  levy  on  real  estate  to  satisfy  the  same,  and  either  of  the 
judgment    creditors,    in   whose    favor   one    or   more    of    such 
executions  are  issued,  require  the  sheriff  or  other  ofdcer,  to 
levy  such  executions,  or  so  many  thereof  as  may  be  required, 
on  separate  parcels  of  the  real  estate  of  the  judgment  debtor 
or  debtors,  giving  to  the  officer  making  the  levy  on  behalf 
of  the  creditors  whose  execution  may,  by  the  provisions  of 
this  chapter,  be  entitled  to  a  preference,  the  choice  of  such 
part  of  the  real  property  of  the  judgment  debtor  or  debtors, 
as  will  be  sufficient,  at  two-thirds  of  the  appraised  value,  to 
satisfy  the  same;  and  in  all  cases  where  two  or  more  execu- 
tions, which  are  entitled  to  no  preference  over  each  other,  are 
put  into  the  hands  of  the  same  officer,  it  is  made  the  duty  of 
the    officer,    when    required,    to    levy    the    same    on    separate 
parcels  of  the  real  estate  of  the  judgment  debtor  or  debtors, 
when,   in   the   opinion   of  the    appraisers,    the   same   may   be 
divided  without  material  injury;  and  if  the  real  property  of 
such  debtors  will  not  be   sufficient,   at  two-thirds  of  its  ap- 
praised value,  to  satisfy  all  the  executions  chargeable  thereon, 
such  part   of   the   same   shall   be   levied   on,   to   satisfy   e-ach 
execution,  as  will  bear  the  same  proportion  in  value  to  the 
whole,    as    the    amount    due    to    the    execution    bears   to    the 
amount  of  all  the  executions  chargeable  thereon,  as  near  as 
may  be,  according  to  the  appraised  value  of  each  separate 
parcel  of  said  real  property.^^ 

Sec.  162.    When  one  other  than  the  officer  making  the  sale 
may  execute  the  deed. 

If  the  term  of  service  of  the  sheriff  or  other  officer  who 
has  made,  or  shall  hereafter  make  sale  of  any  lands  and 
tenements,  shall  expire,  or  if  the  sheriff  or  other  officer  shall 
be  absent,  or  be  rendered  unable  by  death  or  otherwise,  to 
make  a  deed  of  conveyance  of  the  same,  any  succeeding 
sheriff   or   other  officer,   on  receiving   a   certificate   from  the 

.5  Snyder,  5,989;  Wilson,  4,655;  Ohio  Gen.  Code  Sees  11.698  and 
Kansas,     4,910      (1901),     identical;        11,699    (1910),   identical. 


§  163  MERWINE  'S   TRIAL   OF   TITLE   TO   LAND.  148 

court  from  which  the  execution  issued  for  the  sale  of  said 
lands  and  tenements,  signed  by  the  clerk,  by  order  of  said 
court,  setting  forth  that  sufficient  proof  has'  been  made  to 
the  court  that  said  sale  was  fairly  and  legally  made,  and  on 
tender  of  the  purchase  money,  or  if  the  same  or  any  part 
thereof  be  paid  them,  on  proof  of  such  payment  and  tender 
of  the  balance,  if  any,  may  execute  to  the  said  purchaser,  or 
purchasers,  or  his  or  their  legal  representatives,  a  deed  of 
conveyance  of  said  lands  and  tenements  so  sold.  Such  deed 
shall  be  as  good  and  valid  in  law,  and  have  the  same  effect 
as  if  the  sheriff  or  other  officer  who  made  the  sale  had  exe- 
cuted the  same.°® 

Sec.  163.  The  remainder  of  the  proceeds  of  sale  to  be 
returned  to  defendant. 

If,  on  any  sale  made  as  aforesaid,  there  be  in  the  hands  of 
the  sheriff  or  other  officer,  more  money  than  is  sufficient  to 
satisfy  the  writ,  or  writs  of  execution,  with  interest  and 
costs,  the  sheriff  or  other  officer  is  required,  on  demand,  to 
pay  the  balance  to  the  defendant  in  execution,  or  his  legal 
representative.^^ 

Where,  upon  foreclosure  proceedings,  a  mortgagor  sells 
land,  and  the  sheriff  tlien  makes  a  sale  thereof,  the  proceeds 
of  the  sale,  after  the  satisfaction  of  the  mortgage  and  costs, 
should  be  paid  to  the  debtor's  purchaser.'*^  Where  land  is 
sold  by  the  sheriff  under  execution,  and  more  money  is  paid 
than  necessary  to  satisfy  the  execution,  the  excess  belongs 
to  whoever  owns  the  land,  and,  when  it  is  paid  into  court  as 
part  of  the  proceedings  of  the  action  in  which  the  then  owner 
is  not  a  party,  an  order  of  the  court  disposing  of  such  money 
without  notice  to,  and  without  the  knowledge  or  consent  of 

98  Snyder,   5,990;    Wilson,    4,65R;  s^  Snyder,    5.991;    Wilson,    4,657; 

Kansas,     4,911      (1901),     identical;  Kansas,     4,912      (1901),     identical; 

Ohio  Gen.  Code,  Sec.  11,700   (1910),  Ohio  Gen.  Code,  Sec.  11,701    (1910), 

identical.       Sale     made     by     under-  identical. 

sheriff,     sheriff     may     make     deed.  as  Butler   v.   Crap,   29   Kan.   205; 

Ogden  V.  Walters,  12  Kan.  283.  Jenkins  v.  Mq^ier,  22  Kan.  562. 


149  REAL    ESTATE    UNDER    EXECUTION. SALE.  §§  164,  165 

the    then    OMiier    of    the    lands,    is    without    jurisdiction,    and 
void.**^ 

Sec.  164.  The  reversal  of  the  judgment  does  not  defeat  title 
of  the  purchaser. 

If  any  judgment,  or  judgments,  in  satisfaction  of  Avhich 
any  lands  or  tenements  are  sold,  shall  at  any  time  thereafter 
be  reversed,  such  reversal  will  not  defeat  or  affect  the  title 
of  the  purchaser  or  purchasers ;  but  in  such  cases,  restitution 
must  be  made  by  the  judgment  creditors  of  the  money,  for 
which  such  land  or  tenements  were  sold,  with  lawful  in- 
terest from  the  day  of  sale.^ 

Where  a  case  is  prosecuted  on  error  to  reverse  a  judgment, 
but  no  supersedeas  bond  is  given,  the  judgment  creditor's 
title  becomes  absolute. - 

An  order  of  confirmation  is  so  far  final  that  a  purchaser 
from  a  party  to  such  order,  is  not  bound  by  a  subsequent 
revocation  thereof.^ 

Sec.  165.  When  the  lien  expires  in  case  no  execution  issues — 
The  lien  when  mandate  issues  from  the  Supreme 
Court — When  property  may  be  re-appraised  and 
sold. 

No  judgment  heretofore  rendered,  or  which  hereafter  may 
be  rendered,  on  which  execution  shall  not  have  been  taken 
out  and  levied  before  the  expiration  of  one  year  next  after 
its  rendition,  will  operate  as  a  lien  on  the  estate  of  any 
debtor,    to    the    prejudice    of    any    other   judgment    creditor. 

99  French  v.  Poole,   111   Pac.   488.  Kan.    420;     Sheldon    v.    Preussner, 

111  Pac.  488.  52  Kan.  593,   35  Pac.   204. 

1  Snyder,  5,992:  Wilson,  4.G58;  2  Reuge  v.  Brown,  45  X.  W. 
Kansas,  4,912  (1901),  identical;  (Xeb.)  271;  Manful  v.  Graham,  76 
'X^ebraska,  1.510  (1907).  identical;  X^.  W.  (Xeb.)  19.  As  to  what  par- 
Ohio  Gen.  Code,  Sec.  11,702  (1910),  ties  may  demand  restitution  after 
identical;  see,  also.  Smith  v.  Burnes,  judgment  and  sale,  see  Xelson  v. 
8  Kan.  198:  Mills  v.  Ralston,  10  City.  96  X.  W.  (Xeb.)  288. 
Kan.  160;  Hubbard  v.  Ogden,  22  3  Hollister  v.  Maine,  58  X.  W. 
Kan.   671;    Howard  v.  Entrekin,   24  1,126. 


§  165  merwine's  trial  of  title  to  land.  150 

But  in  all  cases  where  judgment  has  been  or  may  be  rendered 
in  the  Supreme  Court,  and  a  special  mandate  awarded  to  the 
district  court  to  carry  the  same  into  execution,  the  lien  of 
the  judgment  creditor  shall  continue  for  one  year  after  the 
first  day  of  the  term  of  the  district  court  to  which  such 
mandate  is  directed.  Nothing  in  this  paragraph  contained 
shall  be  construed  to  defeat  the  lien  of  any  judgment  creditor 
who  shall  fail  to  take  out  execution  and  cause  a  levy  to  be 
made,  as  herein  provided,  when  such  failure  shall  be  occa- 
sioned by  appeal,  proceedings  in  error,  injunction,  or  by 
vacancy  in  the  office  of  sheriff,  or  the  disability  of  such 
officer,  until  one  year  after  such  disability  shall  be  removed. 
In  all  cases  where  real  estate  has  been  or  may  be  hereafter 
taken  on  execution  and  appraised  and  twice  advertised  and 
offered  for  sale,  and  shall  remain  unsold  for  the  want  of 
bidders,  it  is  the  duty  of  the  court  from  which  such  execu- 
tion issued,  on  motion  of  the  plaintiff,  to  set  aside  such 
appraisement,  and  order  a  ncAV  one  to  be  made,  or  to  set 
aside  such  levy  and  appraisement  and  award  a  new  execution 
to  issue,  as  the  case  may  require.* 

An  appeal  to  the  Supreme  Court,  in  the  absence  of  a  super- 
sedeas bond,  does  not  lengthen  the  life  of  the  judgment 
lien.^ 


4  Snyder,  5,993 ;  Wilson,  4,659 
Kansas,  4,914  (1901),  identical 
Nebraska,    1,511     (1907),    identical 


same  defendant  on  which  no  execu- 
tion has  ever  been  issued,  where 
more  than  one  year  had  elapsed 
see,  also,  Larmie  v.  Schilling,  25  from  the  date  of  its  rendition  to 
Kan.  92;  Scroggs  v.  Tritt,  23  Kan.  the  first  day  of  the  term  of  the 
182.  As  to  effect  of  appeal,  see  court  in  which  the  personal  judg- 
Kingsley  v.  Bagsley,  2  Kan.  App.  ment  was  rendered  in  the  foreclosure 
23,  41  Pac.  991.  A  personal  judg-  proceedings.  Thompson  v.  Hubbard, 
ment  against  a  mortgagor  in  an  3  Kan.  App.  714,  44  Pac.  1.095; 
action  to  foreclose  a  mortgage,  be-  but  see  Jackson  v.  King,  62  Kan. 
comes  a  lien  on  all  the  real  estate  850,  62  Pac.  655. 
of     the     judgment     debtor     in     the  s  Harvey   v.   Godding,   109   N.   W. 

county,  and  is  superior  to  the  lien        (Neb.)    220. 
of    a    prior    judgment    against    the 


151  REAL   ESTATE   UNDER   EXECUTION. — SALE.        §§166,167 

Sec.  166.     The  writ  of  execution  to  be  returned  in  sixty  days. 

The  sheriff  or  other  officer,  to  whom  any  writ  of  execution 
is  directed,  must  return  such  writ  to  the  court  to  which  the 
same  is  returnable,  within  sixty  days  from  the  date  thereof.^ 

The  levy  cannot  be  made  after  the  return  day.^  The  writ 
cannot  be  compelled  to  be  returned  before  the  expiration  of 
the  sixty  days ;  ^  and  all  sales  made  after  the  time  within 
which  the  writ  should  be  returned  are  illegal.^  But  this 
rule  does  not  apply  in  cases  where  the  property  is  sold  under 
order  of  sale,  or  venditioni  exponas}^ 

Sec.  167.  Fee  of  appraisers — Penalty  for  failure  to  appear. 
Each  householder  summoned  to  appraise  real  estate  under 
the  provisions  of  this  chapter,  will  be  allowed  and  receive 
for  his  services,  the  sum  of  fifty  cents  for  each  day  he  may 
be  so  engaged  as  such  appraiser,  to  be  collected  on  the 
execution  by  virtue  of  which  the  property  appraised  was 
levied  on,  if  claimed  at  the  time  of  making  the  return  of 
such  appraisement.  And  when  any  householder,  summoned 
as  aforesaid,  fails  to  appear  at  the  time  and  place  appointed 


6  Snvder,  5,994;  Wilson,  4,660;  at  what  date  the  return  is  made; 
Kansas,  4,515  (1901),  identical;  or  wliether  the  return  be  correct 
Nebraska,  1,512   (1907),  identical.  or  incorrect;  or  whether  any  return 

7  Barnor  v.  Stevens,  2  Ark.  429 ;  be  made  at  all,  if  the  writ  really 
Caines  v.  Clark,  1   Bilb.  608.  be     levied    before    the    return     day 

8  Armstrong  V.  Grant,  7  Kan.  286;  mentioned  therein.  It  is  not  the 
Burkett  v.  Clark,  64  X.  W.  (Xeb.)  return  of  the  officer  that  gives  title 
1^113.  to     the    purchase,     but    the    sale." 

9  Schiltz  V.  Smith,  17  Kan.  306.  Borer   on  Judicial   Sales,   Sees.   705 

10  Xorton  v.  Reardon,  67  Kan.  and  706,  citing  Remington  v.  Linthi- 
302,  72  Pac.  861;  Jarrett  v.  Hoover,  cum,  14  Pet.  84;  Wheaton  v.  Sutton, 
72  X.  \Y.  429.  "If  the  levy  be  made  4  Wheat.  503;  Barnard  v.  Stevens, 
before  the  return  day  of  the  writ,  2  Ark.  420;  Childs  v.  McChesney, 
the  officer  may  sell  afterwards  on  20  la.  341;  Stewart  v.  Severance, 
the  same  writ  without  renewal  of  43  Mo.  322;  Stine  v.  Chambliss,  18 
process.  It  is  immaterial  to  the  la.  474;  Phillips  v.  Dana,  3  Scam, 
purchaser  as  to  the  validity  of  the  .";58;  Wood  v.  Colvin,  5  Hill,  231; 
sale,  whether  the  sale  be  made  Barney  v.  Patterson,  5  Har.  and  J. 
before  or  after  the  return   day;   or  204. 


§§  168, 169        merwine's  trial  of  title  to  land.  152 

by  the  officer,  and  discharge  his  duty  as  appraiser,  he  will, 
on  complaint  being  made  to  any  justice  of  the  peace  in  the 
township  in  which  such  householder  resides,  forfeit  and  pay 
the  sum  of  fifty  cents  for  every  such  neglect,  unless  he  can 
render  a  reasonable  excuse.  Such  sum  must  be  collected 
by  said  justice,  and  paid  into  the  township  treasury  for  the 
use  of  the  township." 

Sec.  168.     When  execution  may  issue  to  sheriff  of  another 
county. 

When  an  execution  is  issued  to  the  sheriff  of  any  county, 
other  than  that  in  which  the  judgment  was  rendered,  the 
sheriff,  after  indorsing  the  date  of  its  reception  thereon,  must 
deliver  the  same  to  the  clerk  of  the  district  court  of  his 
county,  who  is  required  thereupon  to  enter  the  same  in  the 
execution  docket  in  the  same  manner  as  if  it  had  issued 
from  the  court  of  which  he  is  clerk;  and  before  the  sheriff 
can  return  any  such  writ,  he  must  cause  his  return  to  be 
entered  in  like  manner. ^- 

Sec.  169.     The  officer  may  mail  execution  to  another  county. 

When  execution  is  issued  in  any  county  in  this  State,  di- 
rected to  the  sheriff  or  other  officer  of  another  county,  it 
will  be  lawful  for  such  sheriff  or  other  officer,  having  the 
execution,  after  having  discharged  all  the  duties  required  of 
him  by  law,  to  inclose  such  execution  by  mail,  to  the  clerk 
of  the  court  who  issued  the  same.  On  proof  being  made  by 
such  sheriff  or  other  officer,  that  the  execution  was  mailed 
soon  enough  to  reach  the  office  where  it  was  issued  within 
the  time  prescribed  by  law,  the  sheriff  or  other  officer  will 


"Snyder,    5,996;    Wilson,    4,602;  ing.     Phoenix  v.  McEvoy,  72  N.  W. 

Nebraska,    1,514     (1907),    identical.  (Xeb.)    956. 

Appraisers  are  not  entitled  to  mile-  12  Snyder,    6,000;    Wilson,    4,666; 

age,  nor  sheriff  to  any  fee  for  act-  Kansas,  4,921    (1901),   similar. 


153  REAL   ESTATE   UNDER   EXECUTION. — SALE.         §§  170,  171 

not  be  liable  for  any  amercement  or  penalty,  if  it  does  not 
reach  the  office  in  due  time.^^ 


Sec.  170.  Money  collected  by  execution  in  another  county 
may  not  be  returned  by  mail. 

No  sheriff  shall  forward  by  mail  any  money  made  on  any 
execution,  unless  he  shall  be  especially  instructed  to  do  it 
by  the  plaintiff,  his  agent  or  attorney  of  record.  In  all  cases 
of  a  motion  to  amerce  a  sheriff,  or  other  officer  of  any 
county  other  than  that  from  which  the  execution  issued,  no- 
tice in  writing  shall  be  given  to  such  officer,  as  hereinbefore 
required,  by  leaving  it  with  him,  or  at  his  office,  at  least 
fifteen  days  before  the  day  on  which  such  motion  will  be 
made.  All  amercements  so  procured  shall  be  entered  on  the 
record  of  the  court,  and  shall  have  the  same  force  and 
effect  as  a  judgment.^* 

Sec.  171.  Sureties  of  sheriff  may  be  made  parties  to  the 
judgment — Property  of  olncer  to  be  first  ex- 
hausted. 

Each  and  every  surety  of  any  sheriff  or  other  officer  may  be 
made  party  to  the  judgment  rendered  as   aforesaid  against 


13  Snyder,    6,001;    Wilson,    4,667;  clerk  of  the  court  where  it  is  issued, 

Kansas,     4,922      (1901),     identical.  a    sufficient   time  before   the   return 

Where    an    execution    is    directed   to  day  for  it  to  reach  the  office  of  the 

the    sheriff    of   any   county    in    this  clerk  issuing  the  same,  and  it  fails 

State  other  than  the  one  in  which  to  reach  the  office  of  the  clerk  who 

it   is   issued,   the   same  may   be   re-  issued    it   on    or    before   the   return 

turned   through    the   United    States  day  thereof,  the  sheriff  is  not  liable 

mail;  and  if  the  sheriff,  after  having  for   amercement   or  penalty.     Reese 

performed    all    that    is    required    of  v.    Rice,    1    Kan.   App.  311,   41    Pac. 

him,  in   an  attempt  to   execute  the  218. 

same  makes  out  a  certificate  of  his  i*  Snyder,    6,002;    Wilson,    4,668; 

doings  thereunder,    dates   the   same,  Kansas,     4,923      (1901),     identical; 

and    has    the    clerk    of    the    district  Nebraska,    4,923     (1907),    identical; 

court  of  his  county  enter  the  return  see   Fenton   v.   White,   4   Okla.    472, 

on  his  execution  docket,  and  he  then  47   Pac.   472;    MoXee  v.   Sewall,   16 

deposited    the    same    in   the    United  X.  W.   (Xeb.)   824;  Fuller  v.  Wells, 

States    postoffice,    addressed    to    tlie  42   Kan.   551,   22  Pac.   561. 


§§  172, 173         merwine's  trial  of  title  to  land.  154 

the  sheriff  or  other  officer,  by  action,  to  be  commenced  and 
prosecuted  as  in  other  cases ;  but  the  goods  and  chattels,  lands 
and  tenements  of  any  such  surety  shall  not  be  liable  to  be 
taken  on  execution,  when  sufficient  goods  and  chattels,  lands 
and  tenements  of  the  sheriff  or  other  officer  against  whom 
execution  may  be  issued,  can  be  found  to  satisfy  the  same. 
Nothing  herein  contained  shall  prevent  either  party  from 
proceeding  against  such  sheriff,  or  other  officer,  by  attach- 
ment, at  his  election. ^^ 

Sec.  172.  Officer  on  amercement  may  collact  original  judg- 
ment, when. 
In  cases  where  a  sheriff  or  other  officer  may  be  amerced, 
and  shall  not  have  collected  the  amount  of  the  original  judg- 
ment, he  shall  be  permitted  to  sue  out  an  execution  and 
collect  the  amount  of  said  judgment,  in  the  name  of  the 
original  plaintiff,  for  his  use.^" 

Sec.  173.    When  contribution  may  be  required. 

When  property,  liable  to  an  execution  against  several  per- 
sons is  sold  thereon,  and  more  than  a  due  proportion  of  the 
judgment  is  laid  upon  the  property  of  one  of  them,  or  one 
of  them  pays,  without  a  sale,  more  than  his  proportion,  he 
may  compel  contribution  from  the  others;  and  when  a  judg- 
ment is  against  several,  and  is  upon  an  obligation  of  one 
of  them,  as  security  for  another,  and  the  surety  pays  the 
amount,  or  any  part  thereof,  either  by  sale  of  his  property 
or  before  sale,  he  may  compel  repayment  from  the  principal; 
in  such  case,  the  person  so  paying  or  contributing,  is  entitled 
to  the  benefit  of  the  judgment,  to  enforce  contribution  or 
repayment,  if  within  ten  days  after  his  payment,  he  file,  with 
the   clerk   of  the   court   where   the   judgment   was   rendered, 


1"  Snyder,    0,00.3;    Wilson.    4,6()0;  fXeb.)    7!^0;    Faye   v.   Edmistnn,   28 

Kansas.     4,024      (1001),     identical:  Kan.  106. 

Xebraska,    1,520     (1007),    identical;  is  Snyder,    (1,004;     Wilson,    4,670; 

see  PiiSCM-ilk  v.  Bollman,  45  N.   W.  Xebraska,  1^21   (1907),  identical. 


155  REAL    ESTATE    UNDER   EXECUTION. SALE.  §  174 

notice  of  his  payment  and  claim  to  contribution  or  repay- 
ment. Upon  a  filing  of  such  notice,  the  clerk  shall  make 
an  entry  thereof  in  the  margin  of  the  doeket.^^ 


Sec.  174.  Equitable  interest  in  lands  subject  to  levy — Stocks 
— Choses  in  action. 

When  a  judgment  debtor  has  not  personal  or  real  prop- 
erty subject  to  levy  on  execution,  sufficient  to  satisfy  the 
judgment,  any  equitable  interest  which  he  may  have  in  real 
estate,  as  mortgagor,  mortgagee,  or  otherwise,  or  any  interest 
he  may  have  in  any  banking,  turnpike,  bridge  or  other  joint 
stock  company,  or  any  interest  he  may  have  in  any  money, 
contracts,  claims,  or  choses  in  action,  due  or  to  become  due 
to  him,  or  in  any  judgment,  or  decree,  or  any  money,  goods, 
or  effects  which  he  may  have  in  the  possession  of  any  person, 
body  politic  or  corporate,  shall  be  subject  to  the  payment  of 
such  judgment,  by  action,  or  as  hereinafter  prescribed.^^ 

There  are  many  decided  cases  on  the  subject  set  forth 
under  this  statute,  but  the  space  allotted  to  this  work  for- 
bids discussion  of  the  same.  A  few  of  the  decisions  will  be 
found  in  the  notes  below.^^ 


17  Snyder,    6,004;    Wilson,    4,G71 ;  of   action    of   creditors,    see    Gemani 

Kansas,     4,026      (1001),     identical;  v.   First,   80  X.  W.    (Neb.)    48.     As 

see,  also,  Honce  v.  Schram,  73  Kan.  to   burden  of   proof,   see   Parline  v. 

368,    85    Pac.    535;    City   v.    Kansas  Ulrich,  78  X.  W.    (Xob.)    275.     The 

City,    etc.,    66    Kan.    610,    72    Pac.  bill  must  show  the  lien  on  the  part 

238:  Wordom  v.  Jones,   1  Kan.  App.  of  the  creditor.     Fairbanks  v.  Weis- 

304.  40  Pac.  1,071.  haus,    75    X.    W.    865.      As    to    the 

IS  Snyder,    6,006;     Wilson,    4,672;  equitable  interest  to  be  reached,  see 

Kansas,     4,957      (1901),     identical;  Kiser  v.  Sawyer,  4  Kan.  503;   Kirk 

Nebraska,  1,535   (1907),  identical.  v.   Kiester,    11   Kan.   471;    Moyer  v. 

19  As   to   parties   to    an   action   to  Pi,?gs,    8    Kan.    App.    234,    55    Pac. 

get  at  an  interest  fraudulently  con-  494;  Van  Vliett  v.  Halsey,  37  Kan. 

veyed,  see  First  v.  Gibson,  94  N.  W.  116,    14    Pac.    482;    Clark    v.    Burt, 

(Neb.)     965.      As    to    allegations   of  2    Kan.     App.     407,     42    Pac.     733; 

creditors'    bill,    see    State    v.    Bilk,  Loades  v.  Hood,  29  Kan.  39. 
94  X.  W.   (Xeb.)    617.     As  to  causes 


§§175,176         merwine's  triaij  of  title  to  land.  156 

Sec.  175.     Pleading,  practice  and  procedure  the  same  in  the 
county  court  as  in  the  district  court. 

For  the  trial  of  all  civil  cases,  now,  or  hereafter  pending,  or 
transferred  in  or  to  any  county  court,  the  pleadings,  practice 
and  procedure  shall  be  the  same  as  in  the  district  court.-*^ 

Sec.  176.    V/hen  the  judgment  becomes  a  lien  on  the  real 
estate. 

Judgments  of  courts  of  record  of  this  State,  and  of  courts 
of  the  United  States,  rendered  within  this  State,  will  be  liens 
on  the  real  estate  of  the  debtor  within  the  county  in  which 
the  judgment  is  rendered  from  and  after  the  time  the  judg- 
ment is  entered  on  the  judgment  docket.  An  attested  copy 
of  the  journal  entry  of  any  judgment,  together  with  a  state- 
ment of  the  costs  taxed  against  the  debtor  in  the  case,  may 
be  filed  in  the  office  of  the  clerk  of  the  district  court  of  any 
county,  and  such  judgment  will  be  a  lien  on  the  real  estate 
of  the  debtor  within  that  county,  from  and  after  the  date  of 
filing  and  entering  such  judgment  on  the  judgment  docket. 
The  clerk  is  required  to  enter  such  judgment  on  the  appear- 
ance and  judgment  docket  in  tlie  same  manner,  and  within 
the  same  time  after  such  judgment  is  filed  in  his  office  as  if 
rendered  in  the  court  of  which  he  is  clerk.  Execution  must 
only  be  issued  from  the  court  in  which  the  judgment  is 
rendered.-^ 

There  seems  to  be  no  other  provision  of  the  statute  as  to 
the  manner  of  enforcing  a  judgment  in  the  county  court  in 
this  State.  There  is  no  statute  directing  execution  to  issue 
directly  out  of  the  county  court  to  enforce  such  judgment. 
Following  the  analogy  of  the  manner  of  enforcing  judgment 
from  the  district  court,  the  safer  and  better  procedure  would 
be  to  file  a  transcript  of  the  judgment  with  the  clerk  of 
the  district  court,  then  have  an  execution  issued  from  that 
court.     However,  in   view  of  the  fact   that   judgments   of  the 

20  Snyder,   3,989.  2i  Snyder,    5,941;    Wilson,    4,608; 

Kansas,   4,868    (1901),   identical. 


157  REAL   ESTATE   UNDER   EXECUTION. SALE.  §§177,178 

county  court  are  liens  on  real  estate  in  the  county  where 
the  judgment  was  entered,  and  in  view  of  the  fact  that  the 
statute  above  stated,  provides  that  the  practice  and  procedure 
in  the  county  court  shall  be  the  same  as  in  the  district  court, 
the  author  is  of  the  opinion  that  an  execution,  in  the  first 
instance  may  issue  out  of  the  county  court,  to  enforce  its  o\vn 
judgment  rendered  therein.  In  stating  this  view,  the  writer 
is  not  unmindful  of  the  decisions  on  this  subject  as  to  judg- 
ments by  probate  courts.-" 

Sec.  177.    Execution  to  conform  to  judgment — Special  cases. 

In  special  cases  not  hereinbefore  provided  for,  the  execution 
shall  conform' to  the  judgment  or  order  of  the  court.  When  a 
judgment  for  any  specified  amount,  and  also  for  the  sale  of 
specific  real  or  personal  property  shall  have  been  rendered, 
and  an  amoiuit  sufficient  to  satisfy  the  amount  of  the  debt, 
or  damages  and  costs,  be  not  made  from  the  sale  of  the  property 
specified,  an  execution  may  issue  for  the  balance,  as  in  other 
eases. -^ 

Sec.  178.     Judgment  of  justice  of  the  peace — How  docketed 

by  clerk  of  district  court. 

In  all  cases  in  which  a  judgment  shall  be  rendered  by  a 

justice  of  the  peace,  the  party  in  whose  favor  the  judgment 

was  rendered  may  file  a  transcript  of  such  judgment  in  the 

22  Eldridgo  v.  Robertson,  15  Okla.  the    money    paid     into    court,    the 

599,    87    Pac.    659.      By    Sec.    1    of  original    owner    of    the    land    (who 

Art.  15,  Title,  Court,  of  the  statutes  was    the    judgment    debtor    in    the 

of  Oklahoma  of  1893    (v/hich  article  suit    in    which    the    land    was    sold 

was    ratified    by    Congress),    which  under      such     execution)      will     be 

provides    that   probate   courts   shall  entitled  to  the  condemnation  money. 

not  order  or  decree  tlie  sale  or  par-  Eldridge  v.  Robertson,  15  Okla.  599, 

tition  of  real  estate,  a  sale  of  real  87  Pac.  659. 

estate    made     under     an     execution  23  Snyder,    6,043;    Wilson,    4,708; 

issued    out    of    such    court    is    abso-  Kansas,     4,994     (1901),     identical; 

lutely    void,    and    a    sheriff's    deed  see,    also,    Norton    t.    Reardon,    67 

to   the   purchaser   conveys   no   title.  Kan.   302,   72   Pac.   861;    Watson  v. 

And  when   the   land   has   been   con-  Keystone,  70  Kan.  61,  78  Pac.  156; 

demned   for   railroad   purposes,   and  Ibid,  70  Kan.  43,  74  Pac.  269. 


§§  179, 180         merwine's  trial  of  title  to  land.  158 

office  of  the  clerk  of  the  district  court  of  the  county  in  which 
the  judgment  was  rendered;  and  thereupon  the  clerk  is 
required  on  the  day  on  which  the  same  was  filed,  to  enter 
the  case  on  the  appearance  docket,  together  with  the  amount 
of  the  judgment  and  time  of  filing  the  transcript;  and  must 
also  enter  the  same  on  the  judgment  docket  as  in  case  of  a 
judgment  rendered  in  the  court  of  which  he  is  clerk.-* 

Sec.  179.  Judgment  of  a  justice  of  the  peace  becomes  a  lien 
on  real  estate,  when. 
Such  judgment  shall  be  a  lien  upon  the  real  estate  of  the 
judgment  debtor,  from  the  day  of  filing  the  transcript,  in 
the  same  manner  and  to  the  same  extent  as  if  the  judgment 
had  been  rendered  in  the  district  court.-^ 

Sec.  180.    Execution  thereon  nay  be  issued  by  the  clerk  of 
the  district  court. 

Execution  may  be  issued  thereon,  to  the  sheriff,  by  the 
clerk  of  the  court,  in  the  same  manner  as  if  the  judgment 
had  been  taken  in  court;  and  the  sheriff  shall  execute  and 
return  the  same,  as  other  executions;  and  in  case  of  sale  of 

24  Snyder,  6,044;  Wilson,  4,710:  and  cannot,,  in  the  first  instance, 
Kansas,  4,995  (1901),  identical;  be  filed  in  the  district  court  of 
Nebraska,  1,566  (1907),  identical.  another  county.  Pemberton  v.  Pol- 
Dormant  judgment  in  the  justice's  lard,  25  X.  W.  (Xeb.)  582;  McBride 
court  not  revived  by  filing  a  tran-  v.  Lathrop,  38  X.  W.  (Xeb.)  32; 
script  under  the  statute.  Lingen  Caton  v.  Grueing,  26  X.  W.  (Xeb.) 
V.  Gates,  26  Kan.  135.  When  the  256.  Such  filing  of  the  transcript 
transcript  is  properly  filed  in  the  does  not  make  it  a  judgment  of  the 
office  of  the  clerk  of  the  district  district  court.  Moores  v.  Psyche, 
court,  recording  to  the  statute,  the  62  X.  W.  (Xeb.)  1,072;  Farmers 
judgment  becomes  subject  to  the  State  Bank  v.  Banes,  90  X.  W. 
same  rules,  and  is  vested  with  the  (Xeb.)   945. 

same   powers,    as   though   originally  25  Snyder,    6.045;    Wilson,    4,711; 

rendered     in      the      district     court.  Kansas,     4,996      (1901),     identical; 

Rahm  v.   Soper.   28  Kan.    159.      The  Xebraska,    4.618     (1907),    identical; 

transcript  of  the  justice,   to  become  see,    also,    Lamme    v.    Schilling,    25 

a  lien  on  re-^l  estate,  must  be  filed  Kan.    64;    Chadron    v.    Association, 

in  the   district  court  of  the  county  63  X.  W.  808. 
where    the    judgment    is    recovered, 


159  REAL    ESTATE    UNDER    EXECUTION. SALE.  §§  181-183 

real  estate,  his  proceedings  shall  be  examined  and  approved 
by  the  court  as  in  other  cases.-^ 

Sec.  181.     Justice  to  certify  costs. 

The  justice  of  the  peace  shall  certify  on  the  transcript, 
the  amount,  if  any,  paid  on  such  judgment.-'^ 

Sec.  182.     Judgment  may  be  revived,  when. 

If  such  judgment  becomes  dormant,  or  if  any  of  the  parties 
thereto  die  before  the  same  is  satisfied,  it  may  be  revived 
in  the  same  manner  as  other  judgments  in  the  district  court, 
and  a  certified  copy  of  the  entry  of  such  transcript  may  be 
filed  in  the  office  of  the  clerk  of  the  district  court  of  any 
other  county,  and  shall  be  a  lien  on  the  real  estate  of  the 
debtor,  in  such  county,  from  th-e  date  of  the  filing  of  such 
copy.-^ 

Sec.  183.  The  procedure  by  which  real  estate  is  levied  upon 
and  sold  under  judgment  in  a  civil  action — The 
petition  in  the  action. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No.  . 

,  Defendant. 

PETITION. 

Comes  now  the  plaintiff  herein,  and  tor  his  cause  of  action 
alleges  that  this,  his  action,  is  founded  on  a  promissory  note,  of 
which  the  following  is  a  true  copy.  (Here  copy  same.)  Said 
note  is  indorsed  as  follows,  there  being  no  credits  on  the  same : 


There  is  due  plaintiff  from  defendant  on  said  note  the  sum  of 
.$ — . ,   with   interest   on   said  sum    from   the   day   of 

26  ^nvder,  6.040;   \Yilson,  4,712.  see,  also,  Israel  v.  Nichols,  .37  Kan. 

27  Snyder,  6,047;   Wilson,  4,713.  68,    14  Pae.  438;    Angell  v.   Martin, 

28  Snyder,    6,048;    Wilson,    4,714;  24  Kan.  344. 
Kansas,     4,999      (1901),     identical; 


§§  184, 185        merwine's  trial  of  tftle  to  land.  160 
,  19 — ,  at  the  rate  of  per  cent,  per  annum,  for 


which,  Avith  costs  of  suit,  he  prays  judgment  against  the  de- 
fendant.   , 

Attorneys  for  Plaintiff. 

State  of  Oklahoma, County,  ss. : 

,  being  first  duly  sworn,  says  that  he  is  the  plaintiff  in 

the  above  action;  that  the  facts  stated  in  the  above  petition  are 
true. . 

Subscribed  in  my  presence  and  sworn  to  before  me  this 

day  of  ,  19 — .  , 


]\Iy  commission  expires  .  Notary  Puhlic. 

Sec.  184.     The  praecipe  for  summons. 

State  of  Oklahoma,  County,  ss. :     In  the  District  Court. 

,  Plaintiff, 

vs.  No. . 

,  Defendant. 

To  the  Clerk  of  said  Court, County: 

Please  issue  summons  in  the  above  entitled  cause  to  -, 


of  County,  Oklahoma,  making  same  returnable  on  the 

day  of  ,  19 — ,  and  designate  therein  the  • 

Jay  of ,  19 — ,  as  answer  day,  and  deliver  the  same  to  the 

sheriff  of County,  and  indorse  thereon  that  if  defendant 

fails  to  answer,  judgment  will  be  taken  for . 


Attorneys  for  Plaintiff. 


Sec.  185.    The  summons  in  the  action. 

State  of  Oklahoma, County,  ss. ;      Tn  the  District  Court. 

,  Plaintiff, 

vs.  No. . 

,  Defendant. 

The  State  of  OJdahoma  to  the  Sheiiff  of County,  Greet- 
ing: 

You  are  hereby  commanded  to  notify that  he  has  been 

sued  by  in  the  district  court  of  County,  Okla- 


161  REAL   ESTATE   UNDER   EXECUTION. — SALE.  §§186,187 

homa,  and  that must  answer  the  petition  of  said , 


filed  against  him  in  said  court,  in  the  city  of  ,  in  said 

county,  on  or  before  the  day  of  ,  19 — ,  or  said 

petition  will  be  taken  as  true  and  judgment  rendered  accord- 
ingly. 

You  will  make  due  return  of  this  summons  on  the day 

of ,  A.  D.  19—. 

In  Witness  Whereof,   I  have  hereunto   set  my   hand  and 

affixed  the  seal  of  said  court  at  ,  in  said  county,  this 

day  of ,  A.  D.  19—. 


Clerk. 
Sec.  186.     The  sheriff's  return. 

Received  this  writ  on  the  day  of  ,   19 — ,  at 

o'clock  —  m.,  and  served  the  same  upon  the  following 

persons,  defendants,  within  named,  at  the  times  following,  to- wit : 
,  by  delivering  to  each  of  said  defend- 
ants, personally  in  said  county,  a  true  and  certified  copy  of  the 
within  summons,  with  all  the  indorsements  thereon.  And  upon 
,  by  leaving  for  each  of  said  defend- 
ants at  usual  place  of  residence  in  said  county,  a  true 

and  certified  copy  of  said  summons,  with  all  the  indorsements 
thereon. 

The  following  persons,  defendant,  within  named,  not  found  in 

said  county :  — ^• 


Sheriff. 

Sec.  187.    Motion  for  appointment  of  guardian  ad  litem  to 
defend  for  insane  defendant. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

,  Defendant. 


MOTION  FOR  APPOINTMENT  OF  GUARDIAN  AD  LITEM. 

Comes  now  the  plaintiff ,  by  his  attorneys,  and  moves 

the  court  for  the  appointment  of  a  guardian  ad  litem  to  defend 


§§  188,  189         merwine's  trial  op  title  to  land.  162 

this  action  on  behalf  of  the  defendant,  for  the  reason  that  said 
defendant  has  been  served  with  summons  and  is  in  default  for 
answer  herein,  and  that  said  defendant  is  insane  and  has  no 
legally  appointed  guardian  to  defend  this  action  for  him. 


Attorneys  for  Plaintiff. 


Sec.  188.     The  affidavit  in  proof  of  insanity. 

District  Court  of County,  State  op  Oklahoma. 

,  Flainiiff, 


vs.  No. 
,  Defendant. 


AFFIDAVIT. 

,  being  first  duly  sworn,  says  that  he  is  a  regular  prac- 
ticing physician,  engaged  in  the  practice  of  medicine  in  the  city 

of  ,  Oklahoma ;  that  he  has  been  the  physician  of  the 

defendant,   ,    for   sometime    past,    and   has   observed  his 

mental  and  physical  condition. 

Affiant  further  says  that  at  the  present  time  the  mind  of  him, 

the  said  ,  is  in  a  state  of  ,  and  that  said  mind  is 

not  possessed  of  sufficient  vigor  to  defend  properly  a  lawsuit 
of  any  kind,  whatever. 

Sworn  to  before  me  and  subscribed  in  my  presence  this 

day  of ,  19-.  , 

]\Iy  commission  expires  .  Notary  Puhlic. 

Sec.  189.    The  order  of  court  appointing  a  guardian  ad  litem 
to  defend  for  insane  defendant. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

,  Defendant. 


ORDER  APPOINTING  GUARDIAN  AD  LITEM. 

This  cause  came  on  to  be  heard  upon  the  application  of  - 


for  the  appointment  of  a  guardian  ad  litem,  for  said  defendant 


163  REAL   ESTATE    UNDER    EXECUTION. SALE.  §§190,191 

to  defend  this  action  for  him,  on  his  hehalf,  was  submitted  to 
the  court,  argued  by  counsel,  heard  upon  testimony,  and  the 
court  finds  that  said  defendant  has  been  served  with  summons 
and  is  in  default  for  answer  or  demurrer  to  the  petition;  that 
he  is  insane  and  that  it  is  necessary  that  such  guardian  ad  litem 
be  appointed,  and  the  court,  therefore,  sustains  said  motion. 

It  is  Therefore  ordered,  adjudged  and  decreed  that  

be,  and  he  is  hereby,  appointed  guardian  ad  litem  to  defend  this 
action  for  said  defendant. 


Judge  of  said  Court. 

Sec.  190.     The  answer  of  guardian  ad  litem  for  insane  de- 
fendant. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

,  Defendant. 

ANSWER  OF  GUARDIAN  AD  LITEM. 

Comes  now  ,  heretofore  appointed  herein  for  fhe  pur- 
pose of  conducting  this  defense  for  the  defendant,  and  for  his 
answer  as  such  guardian  ad  litem,  says,  that  he  has  no  knowl- 
edge of  the  facts  and  allegations  contained  in  said  petition,  and 
for  want  of  such  knowledge,  denies  each  and  every  allegation 
therein,  and  demands  proof  of  the  same. 

■        "  > 

Guardian  Ad  Litem  for  Defendant. 

Sec.  191.    The  judgment  of  the  court  in  the  action. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No. . 

,  Defendant. 

DECREE  OF  COURT. 
This  day  this  cause  came  on  to  be  heard,  the  same  being  one 
of  the  days  of  the  regular Term.  19—,  of  the  said  court, 


§  192  merwine's  trial,  of  title  to  land.  164 

and  said  cause  having  been  regularly  assigned  for  trial,  was 
heard  upon  the  evidence,  argued  by  counsel,  and,  upon  due  con- 
sideration whereof,  the  court  finds  that  said  defendant  was  duly 
summoned  in  this  action,  and  upon  his  failure  to  appear,  upon 
proof  satisfactory  to  the  court  that  said  defendant  was  insane, 

was  duly  appointed  guardian  ad  litem  to  appear  and 

answer  for  him ;  tliat  said  ,  as  such  guardian  ad  litem, 

appeared  for  said  defendant  and  answered  for  said  defendant  in 
due  form  of  law,  and  appeared  at  said  trial  and  represented  the 
interests  of  said  defendant,  and  that  the  allegations  of  said  peti- 
tion are  true. 

It  is  Therefore  Considered  and  Adjudged  that  the  plaintiff 

recover  from  defendant  the  sum  of  $ ,  with  interest  on 

said  sum  of  $ ,  at  the  rate  of  per  cent,  from  the 

day  of ,  19 — ,  and  his  costs  herein  expended,  taxed 

at  $ ;  also  that  there  be  paid  to ,  guardian  ad  litem, 

the  sum  of  $ ,  to  be  taxed  as  costs  herein,  and  paid  from 

the  proceeds  of  any  recovery  in  said  judgment. 


Judge  of  said  Court. 

Sec.  192.    The  execution. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No.  . 

,  Defendant. 

EXECUTION. 

State  of  Oklahoma  to  the  Sheriff  of  ,  County,  Greeting: 

Whereas,  on  the day  of ,  19 — , ,  plaintiff 

in  the  above  action,  obtained  a  judgment  in  the  district  court 

of  County,  State  of  Oklahoma,  against  the  defendant, 

,  for  the  principal  sum  of  $ ,  wuth  interest  accruing 

at  the  rate  of per  cent,  per  annum,  from  the day 

of ,  19 — ,  to  the  date  of  the  service  of  this  writ,  together 

with  .$ ,  costs  therein,  and  $ accrued  costs. 

Now,  Therefore,  you  are  hereby  commanded  that  of  the  goods 
and  chattels  of  said  ,  you  cause  to  be  made  the  money 


165  REAL   ESTATE   UNDER   EXECUTION. — SALE.  §  193 

above  specified,  and  for  want  of  goods  and  chattels  you  cause 
the  same  to  be  made  of  the  lands  and  tenements  of  said  debtor. 
And   make   return   of  this   execution,   showing   how   you   have 
executed  the  same,  within  sixty  days  from  the  date  hereof. 
In  "Witness  Whereof,  I   Aave  hereunto  set  my  hand  and 

affixed  the  seal  of  said  court  at  ,  in  said  county,  this 

day  of ,  19 — .        , 

Clerk. 

Sec,  193.    The  sheriff's  return  of  his  proceedings  under  the 
execution. 

Received  the  within  writ  on  the  day  of ,  19 — , 

at o'clock,  —  m.,  and  executed  the  same  on  the  


day  of  ,  19 — ,  at  o'clock,  —  m.,  by  levying  this 

writ  upon  the  following  described  lands  and  tenements  of  the 

Mathin  named  defendant,  situated  in  the  county  of ,  State 

of  Oklahoma,  to-wit:  (Here  describe  same),  I,  having  found  no 
goods  or  personal  property  of   any  nature  belonging  to   said 

,  in  my  said  county,  and  T  thereupon,  forthwith,  on  the 

same  day,  summoned , and ,  three  disinter- 
ested householders,  resident  within  said  county,  to  view  and 
appraise  said  lands  and  tenements  described  in  this  return  of 
said  writ,  and  administered  to  them  an  oath,  impartially  to 
appraise  the  same  upon  actual  view  thereof,  and  afterwards,  on 

the  day  of ,  19 — ,  said  appraisers  returned  to  me 

under  their  hand  and  oath,  that  they  did,  upon  actual  view, 
estimate  and  impartially  appraise  the  real  value  of  said  real 

estate  at  $ .    I  forthwith  deposited  in  the  office  of  the  clerk 

of  the  district  court  of  County,  a  certified  copy  of  said 

appraisement,  on  the  day  of ,  19 — .     I  thereupon 

caused  public  notice  of  the  time  and  place  of  sale  of  said  lands 
and  tenements  to  be  given  by  advertising  the  same  for  not  less 

than  thirty  days  before  the  day  of  sale  in ,  a  newspaper, 

printed  and  of  general  circulation  in  this  county,  the  first  of 

said  publications  being  on  the  day  of ,  19 — ,  and 

once  each  week  thereafter,  for  at  least  thirty  days  before  said 
day  of  sale.    And  in  pursuance  to  said  notice,  at  the  time  and 


§  194                meewine's  trial  of  title  to  land.                  166 
place  therein  mentioned,  I  did,  on  the  day  of  , 


19 — ,  at o'clock,  —  m.,  at  the  door  of  the  court- 
house of  this  county,  offer  said  lands  and  tenements  at  public 

sale,  and  then  and  there  came ,  who  bid  for  said  property 

the  sum  of  $ ,  and  said  sum  being  more  than  two-thirds 

of  the  appraised  value  thereof,  and  he,  being  the  highest  and 
best  bidder  therefor,  I  then  and  there  struck  off  and  sold  said 

lands  and  tenements  to  said ,  for  said  sum  of  $ . 

Dated  this day  of ,  19 — . 


Sheriff  of County,  State  of  OklaJwma. 


Sec.  194.  The  appraisement  by  the  sheriff  of  real  estate 
under  levy  of  execution — The  oath  of  the  ap- 
praisers— The  appraisement. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No. 
,  Defendant. 


APPRAISEMENT  OF  REAL  ESTATE  BY  SHERIFF. 

I, ■ — ,  sheriff  of  County,  State  of  Oklahoma,  do 

hereby  call  an  inquest  of  ,  and  ,  three  dis- 
interested householders,  who  are  residents  within  said  county  of 

,  to  impartially  estimate  and  appraise,  upon  actual  view, 

the  following  described  real  estate,  situated  in  said  county  of 

,  State  of  Oklahoma,  heretofore  leA'ied  upon  by  me:  (Here 

describe  same.) 

They  will  first  take  and  subscribe  the  following  oath,  then 
proceed  fortliwith  to  make  and  return  to  me  under  their  hands, 
an  estimate  of  the  real  value  of  said  property. 

Witness  my  hand  this  day  of ,  19 — . 


Sheriff  of County,  Oklahoma. 


167  REAL   ESTATE    UNDER   EXECUTION. — SALE.  §  195 

THE  OATH  OF  THE  APPRAISERS. 

State  of  Oklahoma, County,  ss. : 

"We  do  solemnly  swear  that  we  are  disinterested  householders 

resident  within  said  county  of ,  State  of  Oklahoma;  that 

we  will  impartially  appraise,  upon  actual  view,  the  real  estate 
within  described,  and  forthwdth  return  to  the  sheriff  of  said 
county,  under  our  hands,  an  estimate  of  the  real  value  of  said 
property.     So  help  us  God. 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


Sheriff. 


APPRAISEMENT. 


We,  the  undersigned,  in  pursuance  to  the  foregoing  appoint- 
ment and  oath,  to  estimate  and  appraise  the  real  property  afore- 
said, do  hereby  report  to  said  sheriff  that  we  have  performed  the 
duties  assigned  us,  after  going  upon  and  making  strict  examina- 
tion of  said  property,  estimate  and  appraise  the  real  value  of  the 
same.  (Here  describe  real  estate)  in  the  sum  of  $ . 

Witness  our  hands  this day  of ,  19 — . 


Appraisers. 

Sec.  195.     Sheriff's  publication  of  notice  of  sale  of  real  estate 
under  the  levy  and  execution. 

LEGAL  NOTICE   OF  SHERIFF'S  SALE  OF  REAL 
ESTATE. 
Notice  is  hereby  given  that  in  pursuance  of  a  writ  of  execution 

issued  out  of  the  office  of  the  clerk  of  the  district  court  of 

County,  Oklahoma,  upon  a  judgment  in  favor  of  ,  and 

against  ,  commanding  me  to  levy  upon  the  property  be- 


§  196  merwine's  trial  op  title  to  land.  168 

longing  to  said ,  sufficient  to  satisfy  said  judgment,  I  have 

levied  upon   certain  lands  and  tenements   of  the  said  , 

situated  in  County,  to-wit:   (Here  describe  same),  and 

have  caused  said  lands  and  tenements  to  be  appraised  according 
to  law,  which  appraisement  was  in  the  sum  of  $ . 

Now,  Therefore,  notice  is  hereby  given  that  in  pursuance  of 
the  command  of  said  writ,  I  will  offer  for  sale,  and  sell  for  cash, 
to  the  highest  ])idder,  at  public  auction,  said  lands  and  tene- 
ments, or  so  much  thereof  as  will  satisfy  said  judgment,  on  the 

day  of  ,  19 — ,  at  o'clock,  —  m.,  of  said 

day,  at  the  front  door  of  the  courthouse  in  the  city  of ,  in 

the  county  of ,  and  State  of  Oklahoma. 

Witness  my  hand  tliis day  of ,  19 — . 


Sheriff  of County,  Oklahoma. 


Sec.  196.     The  proof  of  publication  of  sheriff's  notice  of  sale 
of  real  estate. 

State  of  Oklahoma, County,  ss. : 

,  of  lawful  age,  being  by  me  first  duly  sworn,  says  that 

he  is  the  of  the  ,  a  weekly  newspaper,  published 

and  printed  in  the  city  of  ,  County,  Oklahoma, 

and  of  general  circulation  in  said  county  and  State ;  that  said 

has  been  published  for  more  than  fifty-two  consecutive 

weeks  prior  to  the  dates  on  which  the  notice  herein  referred  to 
was  published,  and  the  notice,  of  which  a  true  copy  is  hereto 
attached,  was  published  in  the  regular  and  entire   edition   of 

said  ,  and  not  a  supplement  thereof,  for  weeks, 

the  first  of  said  publications  being  on  the day  of , 

19 — ,  and  the  last  on  the day  of ,  19 — . 

Sworn  to  before  me  and  subscribed  in  my  presence  this 

day  of  ,  19.—  , 

My  commission  expires .  Notary  Public. 


169  REAL.   ESTATE    UNDER    EXECUTION. SALE.  §  197 

Sec.  197.     The  order  of  the  court  approving  and  confirming 
the  sale  of  real  estate  under  the  execution. 

District  Court  op County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No. 
,  Defendant. 


ORDER  CONFIRMING  SALE. 

On  this day  of ,  19 — ,  the  same  being  one  of  the 

regular  days  of  the ,  19 —  Term  of  said  court,  this  cause 

came  on  to  be  heard  upon  the  execution  and  order  of  sale  herein 

issued,  the  return  thereof  by  the  sheriff  of  County,  the 

appraisement  herein  made  and  filed,  the  proof  of  publication  by 
said  sheriff  of  notice  of  sale  at  public  auction,  the  levy  made 
by  said  sheriff  on  the  lands  and  tenements  duly  set  forth  in  said 
return,  and  upon  the  pleadings  herein,  was  submitted  to  the 
court,  and  from  consideration  thereof,  being  fully  advised  in 
the  premises,  the  court  finds,  that  under  said  writ,  duly  issued 
herein,  said  sheriff  duly  levied   the  same  upon  the   following 

described  real  estate  situated  in  the  county  of  ,  State  of 

Oklahoma,  to-wit :  (Here  describe  the  same  specifically);  that 
said  real  estate  was  duly  appraised  under  said  writ  by  said 

sheriff  in  the  sum  of  $ ,  as  in  said  appraisement  set  out; 

that  said  sheriff  gave  due  notice  by  publication  of  the  time  and 
place  of  sale  of  said  real  estate  according  to  the  pro\dsions  of 
the  statute  in  such  case  made  and  provided;  that  pursuant  to 
said  notice,  said  sheriff,  at  said  time  and  place,  duly  struck  off 

and  sold  said  real  estate  to ,  as  in  said  return  set  out,  for 

$ ,  said being  the  highest  and  best  bidder  for  said 

real  estate,  and  said  sum  being  more  than  two-thirds  of  the 
appraised  value  thereof ;  that  the  facts  set  out  in  said  return  of 
said  writ,  in  said  appraisement  and  in  said  proof  of  publication, 
are  admitted,  and  that  said  proceedings  of  said  sheriff  under  the 

writ,   said   appraisement    and   sale,   aforesaid,   to   said  , 

should,  in  all  things,  be  approved  and  con«firmed. 


§  198  merwine's  trial  of  title  to  land.  170 

It  is  Therefore  considered,  adjudged  and  decreed  the  said 
appraisement,  said  proceedings  of  said  sheriff  and  sale  of  said 

real  estate  to  said ,  for  said  sum  of  $ ,  be  and  the 

same  is,  hereby,  in  all  things,  approved  and  confirmed,  and  said 
sheriff  is  hereby  ordered  to  execute,  acknowledge  and  deliver  a 
good  and  proper  deed  for  said  premises  above  described,  upon 
payment  to  him  of  the  said  purchase  price. 

And,  coming  to  the  proper  distribution  of  the  proceeds  of  said 
sale,  it  is  by  the  court  considered,  adjudged  and  decreed,  that 
out  of  said  proceeds  said  sheriff  shall  pay: 

1.  The  taxes  and  penalty  thereof,  due  and  payable  on  said 
real  estate,  amounting  to  the  sum  of  $ . 

2.  The  costs  of  this  action,  taxed  in  the  sum  of  $ . 


3.     To  plaintiff  to  apply  as  credit  on  his  judgment  herein,  the 
sum  of  $ . 


Judge  of  said  Court. 

Sec.  198.     Sheriff's  deed  where  real  estate  is  sold  under  the 
ordinary  writ  of  execution. 

To  all  Persons  to  Whom  These  Presents  Shall  Come,  Greeting: 

Whereas,  on  the day  of ,  19 — , filed  his 

certain  petition,  and  then  and  there  commenced  a  civil  action 

in    the    district    court    of    County,    Oklahoma,    against 

,  and  numbered  on  the  docket  of  said  court  as  Case  num- 
ber   ,  praying  for  judgment  against  said  defendant ;  and 

"Whereas,  such  proceedings  were  had  in  said  action,  that  by 

the  consideration  and  judgment  of  said  court  at  the  , 

19 —   Term  thereof,  said  plaintiff  recovered  a  judgment  against 

said  defendant  for  the  sum  of  $ and  costs  of  suit ;  and. 

Whereas,   said  ,   afterwards,   on    the   day   of 

,   19 — ,  sued  out  of  the  clerk's  office  of  said  court,  an 

execution  on  said  judgment,  directed  to  the  sheriff  of  the  county 

of  ,  and  State  aforesaid,  commanding  him,  of  the  goods 

and  chattels,  and  for  want  thereof,  of  the  lands  and  tenements 
of  said  ,  in  said  countv  of  ,  he  cause  to  be  levied 


171  REAL   ESTATE    UNDER   EXECUTION. SALE.  §  198 

and  made  the  amount  of  said  judgment  and  costs,  which  execu- 
tion duly  came  to  the  hands  of ,  sheriff  of County, 

State  of  Oklahoma,  and  which  execution  was  afterwards,  to-wit, 

on  the  day  of  ,  19—,  levied  upon  the  following 

lands  and  tenements  of  said  defendant,  to-wit :  (Here  specifically 
describe  same)  ;  and. 

Whereas,  I, ,  said  sheriff  aforesaid,  having  caused  said 

premises  to  be  appraised,  and  a  copy  of  said  appraisement  to  be 
duly  filed  in  the  office  of  said  clerk,  and  having  advertised  the 

time  and  place  of  sale  of  same  in ,  a  newspaper,  printed 

and  published  and  of  general  circulation  in  said  county,  for 
more  than  thirty  days  prior  to  the  day  of  sale,  and  otherwise 
complied  with  said  ^\Tit  and  the  provisions  of  the  statute  in  such 

case  made  and  provided,  did,  on  the day  of ,  19—, 

at o'clock,  —  m.,  of  said  day,  at  the door  of  the 

courthouse  in  said  county,  expose  to  sale  at  public  auction,  the 

premises  herein  mentioned,  and  thereupon,  ,  having  bid 

for  said  premises  the  sum  of  $ ,  which  said  sum  being  the 

highest  and  best  bid  therefor,  and  the  same  being  more  than 
two-thirds  of  the  appraised  value  thereof,  said  premises  were 

then  and  there  struck  off  and  sold  to  him,  the  said  ,  for 

the  sum  above  mentioned;  and. 

Whereas,  the  said  court,  at  its  ,  19—  Term,  having 

examined  the  proceedings  of  said ,  sheriff  aforesaid,  under 

said  writ,  and  being  satisfied  that  the  sale  aforesaid  had  been 
made  in  all  respects  in  pursuance  thereof,  and  in  accordance  with 
the  provisions  and  requisites  of  the  statute  regulating  such  sales, 
did  order  that  said  sale  be  confirmed,  and  that  said  sheriff  of 

County,   Oklahoma,  should  convey  said  real  estate  by 

deed  in  fee  simple  to  the  purchaser. 


Now,  Therefore,  Know  Ye,  That  I,  ,  sheriff  of  said 

county,  by  virtue  of  said  judgment,  writ,  sale  and  confirmation, 
and  of  the  statute  for  such  cases  made  and  provided,  and  for 
and  in  consideration  of  the  premises  herein,  and  the  sum  of 

$ ^    which    I    acknowledge    to    have    received    from    said 

-,  do  hereby  grant  and  convey  unto  him,  the  said 


the  following  described  real  estate,  situated  in  the  county  of 


§  199  mebwine's  trial  of  title  to  land.  172 
,  and  State  of  Oklahoma,  to-wit:   (Here  describe  it),  to- 


gether with  all  the  privileges  and  appurtenances  thereunto  be- 
longing, and  all  the  right,  title  and  interest  of  said  ,  in 

and  to  the  same. 

To  Have  and  to  Hold  the  premises  aforesaid,  unto  said , 

as   fully  and  completely  as  ,  sheriff  of  said   county  of 

,  by  virtue  of  said  judgment,  writ,  sale  and  confirmation, 

and  of  the  statute  made  and  provided  for  such  cases,  might  and 
should  sell  and  convey  the  same. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  this 
day  of ,  19—. 


Sheriff  of County,  Oklahoma. 

State  of  Oklahoma, County,  ss. : 

Before  me, ,  a  notary  public  in  and  for  said  county  and 

State,  on  this  day  of  ,  19 — ,  personally  appeared 

,  to  me  Imown  to  be  the  identical  person  who  executed  the 

within  and  foregoing  instrument  and  acknowledged  to  me  that 
he  executed  the  same  in  his  capacity  therein  stated,  and  as  his 
free  and  voluntary  act  and  deed  for  the  uses  and  purposes  therein 
set  forth.  , 

My  commission  expires  .  Notary  Public. 

Sec.  199.     Procedure  where  real  estate  is  sold  under  a  ven- 
ditioni exponas — The  sheriff's  return.* 

State  of  Oklahoma, County,  ss. : 

Received  this  writ,  on  the  day  of ,  A.  D.  19 — , 

at o'clock,  —  m.,  and,  pursuant  to  its  command,  no  goods 

and  chattels,  or  lands  and  tenements  found  whereon  to  levy  this 

writ  on  the day  of ,  19 — ,  at o'clock,  —  m., 

I  levied  the  same  on  the  following  described  real  estate  of  said 
,  defendant,  to-wit:  (Here  specifically  describe  same),  and 

*  The    procedure    in    this     action  to  suit  the  fncts  of  each  particular 

will   be   the   same   as   in   the   above,  case.     In   tlie  following,  the   sheriff 

down    to   the   return    of    the    execu-  makes  levy  and  returns  the  writ  for 

tion.      This    return    must    be    made  want  of  time. 


173  REAL    ESTATE    UNDER   EXECUTION. SALE.         §§200,201 

for  want  of  time  to  make  a  sale  of  the  same,  this  writ  is  returned 
this day  of ,  19—. 


Sheriff  of County,  State  of  Oklahoma. 

Sec.  200.    The  praecipe  for  the  venditioni  exponas. 

District  Court  of County,  State  of  Oklahoma. 

■ ,  Plaintiff, 

vs.  No.  


-,  Defendant. 


To  the  Clerk  of  the  District  Court, County,  Oklahoma: 

Please  issue  a  venditioni  exponas  in  the  above  action  directed 
to  the  sheriff  of County,  Oklahoma,  returnable  according 

to  law.  '  ■' 

Attorney  for  Plaintiff. 

Sec.  201.     The  order  of  sale  directed  from  the  clerk  to  the 
sheriff — The  venditioni  exponas. 

District  Court  of County,  State  of  Oklahoma. 


-,  Plaintiff, 


vs. 

-,  Defendant. 


No. 


The  State  of  Oklahoma, County.  To  the  Sheriff  of 

County,  Greeting: 
We  command  you  that  to  satisfy  a  judgment,  which,  by  the 

consideration  of  our  district  court  of  County,  State  of 

Oklahoma,  on  the day  of ,  19—, ,  plaintiff, 

recovered  against  ,  defendant,  for  the  sum  of  $ , 

with  interest  thereon  from  the  day  and  year  above  stated,  until 
paid,    also    costs    and    increased    costs   thereon,    amounting   to 

^ ^  you  expose  for  sale  the  following  described  lands  and 

tenements,  situated  in  the  county  of ,  State  of  Oklahoma, 

to-wit:  (Here  specifically  describe  same),  which,  according  to 
our  command,  you  lately  took  into  your  hands,  which  remain 
unsold ;  and  if,  in  your  opinion,  the  property  remaining  in  your 
hands  not  sold  should  be  insufficient  to  satisfy  said  judgment, 


§  202  merwine's  trial,  of  title  to  land.  174 

then  you  are  hereby  commanded  that  you  levy  the  same  upon 
the  goods  and  chattels,  lands  or  tenements,  or  either,  as  the  law 
shall  permit,  being  the  property  of  said  judgment  debtor,  to- 
gether with  said  property  on  hand,  which  will  be  sufficient  to 
satisfy  said  judgment,  and  that  you  liave  said  money  before  our 
said  district  court  wnthin  sixty  days  to  render  unto  said  party 
so  recovering,  the  sum  as  above  stated,  and  have  then  and  there 
this  writ. 

Witness  the  clerk  of  our  district  court  this  day  of 

,  19—.  , 

Clerk. 


Sec.  202.  The  appointment  of  appraisers  under  venditioni 
exponas — The  oath  of  appraisers — The  appraise- 
ment. 

District  Court  of County,  State  of  OkIvAHOMa. 

,  Plaintiff, 

No.  . 


vs. 
,  Defendant 


APPRAISEMENT  BY  SHERIFF  OF  REAL  ESTATE 
UNDER  VENDITIONI  EXPONAS. 

I    ,  sheriff  of County,  State  of  Oklahoma,  do 


hereby  call  an  inquest  of ,  and ,  three  dis- 
interested householders,  who  are  resident  within  said  county  of 

,  Oklahoma,  to  impartially  estimate  and  appraise,  upon 

actual  view,  the  following  described  real  estate,  situated  in  said 
county  and  State  of  Oklahoma,  to-wit :  (Here  specifically  de- 
scribe the  same.)  They  will  first  take  and  subscribe  the  follow- 
ing oath,  then  proceed  forthwith  to  make  and  return  to  me 
under  their  hands,  an  estimate  of  the  real  value  of  said  property. 
Witness  my  hand  this day  of ,  19 — . 

> 
Sheriff  of  County. 


175  REAL   ESTATE    UNDER   EXECUTION. — SALE.  §  203 

OATH  OF  APPRAISERS. 

State  of  Oklahoma,  County,  ss. : 

We  do  solemnly  swear  that  we  are  disinterested  householders, 

resident  within  said  county  of  ;  that  we  will  impartially 

appraise,  upon  actual  view,  the  real  estate  above  described,  and 
forthwith  return  to  said  sheriff  of  said  county,  under  our  hands, 
an  estimate  of  the  real  value  of  said  property.     So  help  us  God. 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


My  commission  expires  .  Notary  Public. 


APPRAISEMENT. 

"We,  the  undersigned,  in  pursuance  of  the  foregoing  appoint- 
ment and  oath,  to  estimate  and  appraise  the  real  property  afore- 
said, do  hereby  report  that  we  have  performed  the  duties 
assigned  us,  after  going  upon  and  making  strict  examination  of 
said  property,  estimate  and  appraise  the  real  value  of  the  same 
(Here  describe  real  estate),  in  the  sum  of  $ . 

Witness  our  hands  this day  of ,  19 — . 


Appraisers. 

Sec.  203.     The  legal  notice  by  the  sheriff  under  venditioni 
exponas. 

LEGAL  NOTICE   OF   SHERIFF'S  SALE   OF  REAL 
ESTATE. 

Notice  is  hereby  given  that,  in  pursuance  to  a  venditioni  ex- 
ponas issued  out  of  the  office  of  the  clerk  of  the  district  court  of 
County,  commanding  me  to  appraise,  advertise  and  sell 


§  204  merwine's  trial  op  title  to  land.  176 

the  real  estate  belonging  to  said ,  sufficient  to  satisfy  said 

judgment,  I  have  levied  upon  certain  lands  and  tenements  of 

said ,  situated  in County,  to-\vit :  (Here  specifically 

describe  same),  and  having  caused  said  lands  to  be  appraised 
according  to  law,  wliich  appraisement  was  in  the  sum  of  $ ; 

Now,  Therefore,  notice  is  here])y  given  that,  in  pursuance 
to  the  command  of  said  writ,  I  will  offer  for  sale  and  sell  for 
cash,  to  the  highest  bidder  at  public  auction,  said  lands  above 
described,  or  so  much  thereof  as  will  satisfy  said  judgment  and 

costs,  on  the  day  of  ,   19 — ,   at  o'clock, 

—  m.,  of  said  day,  at  the  front  door  of  the  courthouse  in  the 
city  of  ,  — County,  Oklahoma. 

Witness  my  hand  this day  of ,  19 — . 


Sheriff  of County,  Oklahoma. 


Sec.  204.     Proof  of  publication  of  sale  by  sheriff  under  a  ven- 
ditioni exponas. 

PROOF  OF  PUBLICATION  OF  NOTICE. 

State  of  Oklahoma,  County,  ss. : 

,  of  lawful  age,  being  by  me  first  duly  sworn,  says  that 

he  is  the of  the ,  a  weekly  newspaper,  printed  and 

published  in  the  city  of  ,  County,  Oklahoma,  and 

of  general  circulation  in  said  county  and  State ;  that  said 

has  been  published  for  more  than  fifty-two  consecutive  weeks 
prior  to  the  dates  on  which  the  notice  herein  referred  to  was 
published,  and  the  notice,  of  which  a  true  copy  is  hereto  at- 
tached, was  published  in  the  regular  and  entire  edition  of  said 

,  and  not  a  supplement  thereof,  for  weeks,  the 

first  publication  being  on  the  day  of  ,  19 — ,  and 

the  last  on  the day  of  ,  19 — . 

Sworn  to  before  me  and  subscribed  in  my  presence  this 

day  of  ,  19 — .  , 

]\Iy  commission  expires .  Notary  Public. 


177  REAL   ESTATE   UNDER   EXECUTION. — SALE.  §  205 

Sec.  205.     The  sheriff's  return  of  the  venditioni  exponas.* 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 

No. . 


vs. 
,  Defendant. 

SHERIFF'S   RETURN. 

State  of  Oklahoma,  County,  ss. : 

In  obedience  to  the  commands  of  this  writ,  which  was  served 

on  me  on  the  day  of  ,  19-    at  o'clock, 

—  m.,  of  said  day,  I  did,  on  said  day,  levy  the  same  upon  the 

interest  of  the  ^dthin  named  ,  in  and  to  the  folloudng 

described  lands  and  tenements,  situated  in  the  county  of , 

State  of  Oklahoma,  to-wit:    (Here  specifically  describe  said  real 

estate),  and  thereafter,  on  the  day  of  ,  19—    I 

did   summon   ,   and  ,   three    disinterested 

householders,  residents  of  said  county,  who  were  by  me  duly 
sworn  to  impartially  appraise  said  lands  described  in  the  fore- 
going writ,  and  return  herein,  upon  actual  view,  and  afterwards, 
to-wit,  on  the  day  of  ,  19-  said  appraisers  re- 
turned to  me  under  their  hands  and  seals,  that  they  did,  upon 
actual  view  of  the  premises,  estimate  and  impartially  appraise 

the  value  in  money  of  the  same  as  follows:    $ ,  a  certified 

copy  of  which  appraisement  I  forthwith  deposited  in  the  office 

of  the  clerk  of  the  district  court  of  County,  Oklahoma, 

and  on  the day  of ,  19-,  I  caused  to  be  inserted 

in  ,  a  weekly  newspaper,  printed  and  pubhshed  m  the 

English  language,  and  of  general  circulation  in  said  county  and 
State,  said  lands  and  tenements  to  be  sold  at  public  sale,  at  the 

front  door  of  the  courthouse  in  the  city  of  ,  m 

County,  on  the  day  of ,  19-,  at  o'clock, 

_  m.,  of  said  day;  and,  having  advertised  the  lands  and  tene- 
ments' to  be  sold  at  public  sale  at  the  front  door  of  the  court- 

•The  order  of  the  court  confirm-  for   the   deed  to   the   purchaser   are 

inc.  and   approving  the  sale  by  the  the    same   as   set   forth   in   Sections 

sheriff,   and    the   order   for   deed   in  197  and  198,  above. 
venditioni    exponas,    and    the    form 


§  206  MERWINE  'S   TRIAL   OF    TITLE    TO   LAND.  178 

house  of County,  for  more  than  thirty  days  prior  to  the 

day  of  sale,  to-wit :  weeks,  on  the  same  day  of  the  week 

in  each  week;  and,  in  pursuance  to  said  notice,  I  did,  on  the 
day  of  ,  19 — ,  at  the  time  and  place  above  men- 
tioned, proceed  to  offer  said  lands  at  public  sale  at  the  ■ 

door  of  the  said  courthouse;  and  then  and  there  came  , 


who  bid  for  the  same  the  sum  of  $ ,  and  said  sum  being 

more  than  two-thirds  of  the  appraised  value  thereof,  and  said 

being  the  highest  and  best  bidder  therefor,  1  then  and 

there  publicly  sold  and  struck  off  said  lands  and  tenements  to 

him  for  said  sum  of  $ . 

Dated  this day  of ,  19 — . 


Sheriff  of County,  OklaJioma. 


Sec.  206.  The  proceedings  for  sale  of  levy  made  under  for- 
eign execution — The  petition  asking  for  the  mar- 
shaling of  liens  and  sale  of  real  estate.* 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No. 
and  ,  Defendants. 


PETITION. 

Comes  now  the  plaintiff,  a  corporation  not  for  profit,  duly 
incorporated  under  the  laws  of  the  State  of  Oklahoma,  having 

its  principal  place  of  business  at  ,  Oklahoma,  and  for  its 

cause  of  action  herein,  alleges  and  states : 

1.     That  on  the day  of ,  19—,  by  consideration 

of  the  district  court  of County,  Oklahoma,  in  Case  num- 
ber   ,  plaintiff  recovered  a  judgment  against  ,  de- 
fendant, for  the  sum  of  $ ,  with  interest  on  said  sum  at 

per  cent,  per  annum  from  the  day  of  

*  The  praecipe,  summons  and  return  thereof  by  the  sheriff  are  as  in  Sec- 
tions  184    and    185,  above. 


179  REAL   ESTATE    UNDER    EXECUTION. SALE.  §  206 

19 — ,  and  also  its  costs  therein  taxed  at  $ ,  and  that  said 

judgment  and  costs  remain  wholly  unpaid. 

2.  That  on  the  day  of  ,  19 — ;  plaintiff  caused 

an  execution  to  be  issued  on  said  judgment  against  the  said 

defendant,  ,  herein,  and  against  and  against  the 

other  defendants  in  said  case,  directed  to  the  sheriff  of  

County,  Oklahoma,  who,  on  the  day  of  ,   19 — , 

returned  said  writ  as  follows:  "No  goods,  chattels,  lands  or 
tenements  found  whereon  to  levy  this  ^^^:•it,  and,  for  want  of 
same,  this  writ  is  returned." 

3.  That  on  the day  of  ,  19 — ,  plaintiff  caused 

an  alias  execution  to  be  issued  on  said  judgment  against  the 
defendant,  ,  in  said  action,  and  against  the  other  de- 
fendants therein,  directed  to  the  sheriff  of County,  Okla- 
homa, who,  under  said  writ,  for  want  of  goods  and  chattels 
whereon  to  levy,  levied  on  certain  real  estate  of  the  defendant, 
other  than ;  that  said  real  estate,  by  virtue  of  said  execu- 
tion and  levy,  was  sold,  but  by  reason  of  other  prior  liens  on 
said  real  estate,  no  part  of  the  judgment  and  costs  herein  were 
paid  out  of  the  proceeds  of  said  sale. 

4.  That  on   the  day  of  ,   19 — ,   the  plaintiff 

caused  another  ilias  execution  to  be  issued  on  said  judgment 

against  said  ,  and  the  other  defendants  in  said  action, 

directed  to  the  sheriff  of County,  Oklahoma,  who,  on  the 

day  of ,  19 — ,  returned  said  writ  as  follows:   "No 

goods,  chattels,  lands  or  tenements  found  whereon  to  leyj  this 
writ,  and,  for  want  of  same,  this  writ  is  returned." 

5.  That  on  the  day  of ,  19 — ,  plaintiff  caused 

another  alias  execution  to  be  issued  on  said  judgment  in  said 

cause,  against  said  defendant,  ,  directed  to  the  sheriff  of 

County,  Oklahoma,  who,  on  the day  of  , 

19 — ,  levied  said  writ  of  execution  upon  the  folloAving  described 

real  estate,  situated  in Count}",  Oklahoma,  to-wit:    (Here 

describe  same),  and  that  said  sheriff  of  said County  was 

unable  to  effect  a  sale  of  said  real  estate  because  of  want  of  time, 
and  because  of  prior  liens,  and  the  same  was  returned  under 
direction  of  plaintiff's  attorneys  for  further  proceedings. 


§  207  merwine's  trial  of  title  to  land,  180 

6.  That  on  account  of  said  judgment,  execution  and  levy 
aforesaid  and  the  proceedings  thereunder,  said  plaintiff  has  a 

valid  lien  on  said  real  estate  for  $ ,  with  interest  from  the 

day  of ,  19 — ,  at  the  rate  of per  cent,  per 

annum,  and  a  lien  for  $ ,  for  costs  and  increased  costs. 

7.  That  the  defendant,  ,  who  is  years  of  age, 

by  virtue  of  a  certain  instrument  of  conveyance,  recorded  with 

the  register  of  deeds  of  County,  Oklahoma,  claims  to 

own  a  life  estate  in  the  estate  so  levied  upon,  and  the  defendant, 
,  claims  a  certain  mortgage  interest  in  said  real  estate. 

Wherefore,  the  premises  considered,  plaintiff  prays  that  said 

defendants,  and  ,  be  required  to  answer  herein, 

and  set  forth  their  several  claims  and  liens  on  said  real  estate, 
if  any  they  have,  or  be  forever  barred  from  asserting  the  same ; 
that  said  real  estate  be  sold  as  upon  execution,  to  satisfy  plain- 
tiff's lien  thereon,  subject  to  said  life  estate;  that  the  proceeds 
arising  from  said  sale  be  applied  to  the  payment  of  the  various 
liens  claimed  against  said  real  estate,  in  the  order  of  their  re- 
spective priorities,  and  that  plaintiff  may  have  such  other  and 
further  relief  as  equity  and  the  nature  of  the  case  may  require. 


Attorneys  for  Plaintiff. 
State  of  Oklahoma,  County,  ss. : 

,  being  first  duly  sworn,  says  that  he  is  the  of 

said  plaintiff;   that  the   facts  stated  in  the  foregoing  petition 
are  true.  — — — 

My  commission  expires .  Notary  Public. 


Sec.  207.     The  answer  and  cross-petition  of  defendant  setting 
up  a  life  estate  in  the  premises  levied  upon. 

District  Court  of  County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No. 
and  ,  Defendants. 


181  REAL   ESTATE    UNDER   EXECUTION. — SALE.  §  208 

ANSWER  AND  CROSS-PETITION. 

Comes  now  the  defendant,  ,  and  for  her  cross-petition 

and  answer  herein,  alleges  and  states  that  she  admits  she  has  a 
life  estate  in  and  to  the  real  estate  described  in  the  petition 
herein,  and  the  instrument  giving  her  title  thereto  is  recorded 
with  the  register  of  deeds  of  said  county  as  alleged. 

She  alleges  that  the  conveyance  granting  her  an  estate  in  said 

real  estate  was  executed  and  delivered  to  her  on  the day 

of ,  19 — ,  and  was  received  for  record  in  the  office  of  the 

register   of   deeds   of  said  County,    Oklahoma,   on   the 

day  of ,  19 — ,  at o'clock,  —  m. ;  that  said 

lease  is  in  full  force  and  effect,  and  that  her  right  and  estate  are 
prior  to  the  lien  claimed  by  plaintiff;  that  this  defendant  has 
complied  with  all  and  singular  the  terras  and  conditions  of  said 
lease,  which  are  as  follows:  (Here  insert  same  in  substance) 
as  set  forth  in  said  lease,  to  which  reference  is  hereby  made  for 
the  full  and  complete  terms  and  conditions  thereof. 

"Wlierefore,  this  defendant  prays  that  her  said  lien  may  be 
declared  in  full  force  and  effect ;  that  her  life  estate  in  said  real 
estate  so  granted  her  by  the  terms  and  conditions  of  said  lease 
be  decreed  prior  to  the  lien  of  the  plaintiff,  and  that  in  any 
order  or  decree  rendered  herein,  her  rights  herein  may  be  fully 
protected,  and  for  such  other  and  further  relief  in  the  premises 
to  which  she  may  be  entitled. 


Attorneys  for  Defendant. 


Sec.  208.     The   answer   of   a  judgment  debtor  containing   a 
general  denial. 

District  Court  of County,  State  op  Oklahoma. 

,  Plaintiff, 


vs.  No. 
and ,  Defendants. 


§  209  MERWINE  'S   TRIAL   OF   TITLE   TO   LAND.  182 

ANSWER. 

Comes  now  the  defendant,  ,  and  for  his  answer  to  the 

petition  herein,  says  that  he  denies  each  and  every  allegation 
in  said  petition  contained. 

Wherefore,  defendant  prays  that  he  may  be  dismissed  with 

his  costs.  , 

Attorneys  for  Defendant. 

Sec.  209.     The    answer    and    cross-petition    of    a    lienholder 
setting  up  a  mortgage.* 

District  Court  of  County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No. 
and  ,  Defendants. 


ANSWER  AND  CROSS-PETITION  OF 


Comes  now  the  defendant,  ,  and  for  his  cross-petition, 

alleges  that  on  the day  of  ,  19 — ,  the  defendant, 

,  made,  and  gave  to  this  defendant,  his  promissory  note 

for  the  sum  of  $ ,  due  in  years  after  date,  with 

interest  at  the  rate  of per  cent,  per  annum,  payable  semi- 
annually; that  in  order  to  secure  the  payment  of  said  note, 
defendant  made  and  gave  to  this  defendant,  his  mortgage  deed 
on  real  estate  described  in  the  petition ;  that  said  mortgage  was 

conditioned  in  substance  that  if  said  defendant,  ,  should 

well  and  truly  pay  said  note,  according  to  its  tenor,  the  said 
mortgage  should  become  void,  otherwise  the  same  to  remain  in 
full  force  and  effect ;  that  said  mortgage  was  duly  filed  for  record 

with  the  register  of  deeds  of  County,  on  the  day 

of ,  19 — ,  at  o'clock,  —  m.,  of  said  day,  and  was 

*  The  foregoing  form  for  a  mort-  funds   arising  from  the  sale  to  the 

gage  lien  can  be  used  only  in  cases  satisfaction  of  his  mortgage  in  the 

where     no     personal     judgment     is  order  of  its  priority.     Where  a  per- 

asked,     and    where    the    mortgagee  sonal    judgment   is   asked,   the   note 

simply   asks    for    the    protection    of  and  mortgage  should  be   set  up   in 

his  lien,  and  the  application  of  the  two  separate  causes  of  action. 


183  REAL   ESTATE   UNDER   EXECUTION. — SALE,  §  210 

by  him  recorded  in  Book ,  at  page of  the  records 

in  his  said  office ;  that  said  mortgage  is  a  first  and  best  lien  on 
the  real  estate  described  in  the  petition,  and  nothing  has  ever 
been  paid  on  said  note  and  mortgage. 

Wherefore,  this  defendant  prays  that  his  said  mortgage  may 
be  declared  a  first  and  best  lien  on  the  real  estate  described  in 
the  petition;  that  in  any  order,  judgment  or  decree  entered  in 
this  cause,  the  rights  and  interests  of  this  defendant  in  and  to 
said  mortgage  be  protected,  and  if  said  property  be  sold,  that 
the  same  be  sold  subject  to  said  mortgage,  and  for  such  other 
and  further  relief  to  which  he  may  be  entitled  in  the  premises. 

■, 

Attorneys  for  said  Defendant,  . 


Sec.  210.  The  judgment  of  the  court  finding  the  issues  in 
favor  of  the  plaintiff  and  decreeing  and  ordering 
sale  of  the  real  estate. 

District  Court  op  County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No. 


and  ,  Defendants. 

DECREE. 

This  day  this  cause  came  on  to  be  heard  upon  the  petition  of 

the  plaintifiP,  and  answer  thereto  of  the  defendant,  ,  and 

answer  and  cross-petition  of  the  defendant,  ,  and  the  evi- 
dence; and,  on  consideration  whereof,  the  court  finds  the  issues 

joined  in  favor  of  the  plaintiff,  and  that,  on  the  day  of 

,  19 — ,  by  consideration  of  the  district  court  of  ■ 

County,  Oklahoma,  plaintiff  recovered  a  judgment  against  the 

defendant, ,  in  the  sum  of  $ ,  with  interest  on  said 

sum  at  the  rate  of per  cent,  per  annum,  from  the • 

day  of ,  19—,  and  costs  of  suit,  as  set  forth  in  the  petition 

herein,  which  judgment  is  in  full  force  and  effect,  and  wholly 
unpaid  and  unsatisfied,  and  that  there  is  now,  at  the  date  of 
this  finding  and  decree,  due  plaintiff  from  defendant,  , 


§  210  mebwine's  trial  op  title  to  land.  184 

on  said  judgment  and  costs,  including  interest,  the  total  sum  of 

$ ,  which  is  entitled  to  bear  interest  at  the  rate  of 

per  cent,  until  paid;  that  executions  were  duly  issued  on  said 
judgment  as  alleged  in  the  petition,  and  for  want  of  goods  and 

chattels  whereon  to  levy,  the  execution  of  the  day  of 

,  19 — ,  directed  to  the  sheriff  of  this  county,  was,  by  said 

sheriff,  on  the  day  of  ,  19 — ,  duly  levied  on  the 

real  estate  described  in  the  petition,  and  returned  not  sold 
because  of  prior  liens,  and  upon  direction  of  plaintiff's  attor- 
neys; that  by  virtue  of  said  judgment,  execution  and  levy  last 
mentioned,   and  the   proceedings  therein,  plaintiff  has  a  valid 

lien  thereon,  dating  from  the  day  of  ,  19 — ,  on 

the  real  estate  in  the  petition  described,  for  the  sum  of  $ , 

with  interest  thereon,  from  the day  of ,  19 — ,  and 

plaintiff  is  entitled  to  have  said  premises  sold  for  satisfaction 
thereof. 

The  court  further  finds  that  the  defendant,  ,  is 

years  of  age,  and  is  seized  of  a  life  estate  in  and  to  said  real 
estate  described  in  the  petition,  by  virtue  of  a  lease  executed  to 

her  on  the day  of ,  19 — ,  which  lease  was  filed  for 

record  in  the  office  of  the  register  of  deeds  of County,  on 

the day  of ,  19 — ,  at o'clock,  —  m.,  of  said 

day,  and  on  the  said  day,  was  recorded  in  lease  records  of  said 

County,  in  volume  ,  page  ,  and  that  her 

said  estate  is  superior  and  paramount  to  the  lien  of  the  plaintiff 
herein. 

The  court  further  finds  that  defendant, ,  on  the 

day  of  ,  19 — ,  duly  received  from  defendant,  ,  a 


mortgage  on  said  premises  in  the  petition  described,  to  secure 
the  payment  of  the  latter 's  promissory  note  of  even  date,  for 
$ ,  bearing  interest  at  per  cent,  per  annum,  pay- 
able semiannually,  which  mortgage  was  duly  filed  for  record  in 

the  office  of  the  register  of  deeds  of  County,  at  

o'clock,  —  m.,  as  alleged  in  the  answer  and  cross-petition  of 

said   defendant, ;   that  said  ,   by  virtue   of  said 

mortgage,  acquired  a  lien  on  said  real  estate,  dating  from  the 
said  day  of ,  19 — ,  at  o'clock,  —  m.,  for 


185  REAL   ESTATE   UNDER   EXECUTION. — SALE.  §  211 

the  sum  of  $ ,  bearing  interest  at  the  rate  of  per 

cent,  per  annum,  payable  semiannually;  and  that  the  same  is  a 

first  and  best  lien  on  said  real  estate ;  that  said  sum  of  $ , 

with  interest  as  last  aforesaid,  is  now  due  to  said  ,  who 

is  entitled  to  have  said  premises  sold  for  the  satisfaction  thereof. 
It  is  Therefore  ordered,  adjudged  and  decreed  that,  unless 

the  defendant, ,  shall,  within days  from  the  entry 

of  this  decree,  pay,  or  cause  to  be  paid  to  the  clerk  of  this  court, 
the  costs  of  this  case,  and  to  the  plaintiff  herein,  the  sum  found 

due   it,    as    aforesaid,    with   interest    at   per   cent,    per 

annum,  the  said  premises  be  sold,  and  that  an  order  of  sale  issue 
to  the  sheriff  of County,  directing  him  to  have  said  prem- 
ises appraised,  subject  to  said  life  estate  of ,  aged 

years,  and  advertise  and  sell  the  same  as  upon  execution,  to 

satisfy  the  liens  of  the  plaintiff  and  the  defendant, ,  and 

subject  to  said  life  estate  of  ,  and  report  his  proceedings 

to  this  court  for  further  orders. 


Judge  of  said  Court. 

Sec.  211.    The  appointment  of  appraisers— The  oath  of  the 
appraisers — The  appraisement. 

District  Court  op  County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

and  ,  Defendants. 


l^  ,  sheriff  of  County,  State  of  Oklahoma,  do 

hereby  call  an  inquest  of ,  and ,  three  dis- 
interested householders,  who  are  resident  within  said  county  of 

,  to  impartially  estimate  and  appraise,  upon  actual  view, 

the  following  described  real  estate  situated  in  said  county  of 
,  Oklahoma,  heretofore  levied  upon  by  me:  (Here  spe- 
cifically describe  same.)  They  will  first  take  and  subscribe  the 
following  oath,  then  proceed  forthwith  to  make  and  return  to 
me  under  their  hands  an  estimate  of  the  real  value  of  said 
property. 


§  212  MERWINE  'S   TRIAL    OF   TITLE   TO   LAND.  186 

Witness  my  hand  this day  of ,  19 — . 


Sheriff  of County. 


OATH    OF    APPRAISERS. 

State  of  Oklahoma, County,  ss. : 

We  do  solemnly  swear  that  we  are  disinterested  householders 

resident  within  the  county  of  ,  and  State  of  Oklahoma; 

that  we  Avill  impartially  appraise,  upon  actual  view,  the  real 
estate  above  described,  and  forthwith  return  to  the  sheriff  of 
said  county,  under  our  hands,  an  estimate  of  the  real  value  of 
said  property.    So  help  us  God. 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


Sheriff  of County,  Oklahoma. 


APPRAISEMENT. 

We,  the  undersigned,  in  pursuance  of  the  foregoing  appoint- 
ment and  oath,  to  estimate  and  appraise  the  real  property  afore- 
said, do  hereby  report  to  said  sheriff,  that  we  have  performed 
the  duties  assigned  us,  after  going  upon  and  making  strict 
examination  of  said  property,  estimate  and  appraise  the  real 
value  of  the  same   (Here  describe  real  estate),  in  the  sum  of 

$ . 

Witness  our  hands  this day  of ,  19 — . 


Appraisers. 

Sec.  212.     The   sheriff's   legal   notice   of   sale   of  real   estate 
the  order  of  sale. 
Notice  is  hereby  given  that,  in  pursuance  to  an  order  of  sale 
issued  out  of  the  office  of  the  clerk  of  the  district  court  of 


187  REAL    ESTATE    UNDER   EXECUTION. SALE.  §  213 

County,  Oklahoma,  upon  a  judgment  and  decree  in  favor  of 
,  vs.  ,  and  ,  commanding  me  to  ap- 
praise, advertise  and  sell  the  real  estate  hereinafter  described, 

belonging  to  said ,  in  order  to  satisfy  said  judgment  and 

decree. 

Now,  Therefore,  notice  is  hereby  given  that  in  pursuance  to 
the  command  of  said  order  of  sale,  I  will  offer  for  sale  and  will 
sell  for  cash,  to  the  highest  bidder  at  public  auction,  the  follow- 
ing described  lands  and  tenements  of  said  ,  situated  in 

County,   State  of  Oklahoma,  to-wit :    (Here  specifically 

describe  same),  or  so  much  thereof  as  will  satisfy  said  judgment, 

decree  and  costs,  on  the  day  of  ,  19 — ,  at  

o'clock,  —  m.,  of  said  day,  at  the  front  door  of  the  courthouse 

in  the  city  of  ,  County,   Oklahoma.     Said  real 

estate  is  appraised  in  the  sum  of  $ . 

"Witness  my  hand  this day  of ,  19 — , 


Sheriff  of  County,  State  of  Oklahoma. 

Sec.  213.     The  proof  of  publication  of  sheriff's  notice  of  sale 
of  real  estate. 

State  of  Oklahoma,  County,  ss, : 

,  of  lawful  age,  being  by  me  first  duly  sworn,  says  that 

he  is  the of  the ,  a  weekly  newspaper  printed  and 

published  in  the  city  of ,  County,  Oklahoma,  and 

of  general  circulation  in  said  county  and  State ;  that  said ■ 

has  been  published  for  more  than  fifty-two  consecutive  weeks 
next  to  the  dates  on  which  the  notice  herein  referred  to  was 
published,  and  the  notice  of  which  a  true  copy  is  hereto  at- 
tached, was  published  in  the  regular  and  entire  edition  of  said 

,  and  not  in  a  supplement  thereof,  for weeks,  the 

first  of  said  publications  being  on  the  day  of  , 

19 — ,  and  the  last  on  the day  of ,  19 — . 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


My  commission  expires .  Notary  Public. 


§  214  merwine's  trial  of  title  to  land.  188 

Sec.  214.     The  sheriff's  return  of  his  proceedings  under  the 
order  of  sale. 

State  of  Oklahoma,  County,  ss. : 

Received  this   writ   on   the  day  of  ,   19 — ,  at 

o'clock,  —  m.,  and,  pursuant  to  its  command  I  did,  on 

the  day  of  ,  19 — ,  summon  ,  and 

,  three  disinterested  householders,  residents  of  said  county 

of ,  who  were  by  me  duly  sworn  to  appraise  the  lands  and 

tenements  in  said  writ  described;  and  afterward,  on  the 

day  of ,  19 — ,  said  appraisers  returned  to  me,  under  their 

hands,  that  they  did,  upon  actual  view  of  the  premises,  estimate 
and  appraise  the  value  of  the  same  in  money,  as  follows,  to-wit : 

(Plere  describe  real  estate),  $ .     A  certified  copy  of  said 

appraisement  I  forthwith  deposited  in  the  office  of  the  clerk  of 

the   district   court   of  County,    Oklahoma,    and   on   the 

day  of ,  19 — ,  I  caused  to  be  advertised  in , 

a  newspaper,  printed  and  published,  and  of  general  circulation 

in  said  County,  said  lands  and  tenements  to  be  sold  at 

public  auction,  at  the  front  door  of  the  courthouse  in  the  city 

of  ,  County,   Oklahoma,   on   the  day  of 

,  19 — ,  between  the  hours  of  and  —  m., 

of  said  day.     Having  advertised  said  lands  for  more  than  thirty 

days  prior  to  the  day  of  sale,  to-wit :  consecutive  weeks, 

I  did,  in  pursuance  to  said  notice,  on  said day  of , 

19 — ,  at  the  time  and  place  above  mentioned,  proceed  to  offer 
said  lands  and  tenements  at  public  sale,  at  the  front  door  of  said 

courthouse,  and  then  and  there  came  ,  who  bid  the  sum 

of  $ for  said  property,  said  sum  being  not  less  than  two- 
thirds  of  the  appraised  value  thereof,  and  being  the  highest  and 
best  bid  therefor,  I  then  and  there  publicly  sold  and  struck  off 
said  lands  and  tenements  to  him  for  the  sum  of  $ . 


Sheriff  of  County,  Oklahoma. 


189  REAL   ESTATE   UNDER   EXECUTION. — SALE.  §  215 

Sec.  215.    The  confirmation  of  the  sale  and  order  for  deed 
and  distribution  of  the  proceeds  of  sale. 

District  Court  of  County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No. 
and ,  Defendants. 


CONFIRMATION  OF  SALE  AND  ORDER  FOR  DEED. 

This  day  this  cause  came  on  to  be  heard  on  motion  to  confirm 
the  same  made  herein,  and  thereupon,  the  order  of  sale  and  pro- 
ceedings thereunder,  and  the  return  thereof  were  produced  to 
the  court,  and,  upon  due  consideration  whereof,  the  court  finding 
the  same  to  be  regular  and  strictly  according  to  law,  said  pro- 
ceedings and  sale  are  hereby  approved  and  confirmed. 

The  court  further  finds  that  the  purchaser  of  said  premises 
has  fully  paid  the  judgment  of  the  plaintiff  herein,  and  that  a 
conveyance  should  be  made  to  said  purchaser,  subject  to  the 

mortgage  set  forth  in  the  cross-petition  of  defendant,  , 

and  subject  to  the  life  estate  of  . 

It  is  Therefore  hereby  ordered  that  the  sheriff  shall  make  out 

and  execute  to  said  purchaser, ,  a  good  and  sufficient  deed 

to  the  real  estate  described  in  the  petition.  (Here  insert  specific 
description  of  same.) 

The   court  further  finds  that  said  judgment  of  plaintiff  so 

paid  and  satisfied  by  the  purchaser, ,  amounts  to  the  sum 

of  $ ,  and  the  amount  due  and  owing  upon  said  mortgage 

to  ,  is  $ .  The  costs  herein  taxed,  which  said  pur- 
chaser has  paid,  to  the  amount  of  $ . 

The  court  further  finds  that  there  remains  of  the  purchase 

price  so  paid  by  said ,  the  sum  of  $ ,  which  the  said 

sheriff  is  hereby  ordered  to  pay  to  said . 


Judge  of  said  Court. 


§  216  merwine's  trial  of  title  to  land.  190 

Sec.  213.     The  sheriff's  deed  to  the  purchaser. 

To  all  Persons  to  Wliom  These  Presents  Shall  Come,  Greeting: 

Whereas,  on  the day  of ,  19—,  plaintiff  filed  its 

certain  petition,  and  then  and  there  commenced  a  civil  action  in 

the  district  court  of Count}^  Oklahoma,  against  , 

and  ,  and  numbered  on  the  docket  of  said  court 


as  case  number ,  praying  therein,  among  other  things,  for 

judgment  against  the  defendants  in  said  case ;  and. 

Whereas,  such  proceedings  were  had  in  said  action,  that,  by 

the  consideration  and  judgment  of  said  court,  on  the  

day  of  ,  19 — ,  at  the  term,  19 — ,  of  said  court, 

plaintiff  recovered  a  judgment  against  the  said  ,  

and ,  in  the  sum  of  $ ,  and  costs  of  suit ;  and. 

Whereas,  said  judgment  of  said  court  remained  in  part  un- 
paid, an  execution  was  issued  out  of  said  court,  directed  to  the 

sheriff'  of  County,  State  of  Oklahoma,  and  said  sheriff, 

under  said  execution  having  levied  the  same  on  the  real  estate 
hereinafter  described,  and  having  returned  the  same  for  further 
proceedings;  and. 

Whereas,  afterwards,  on  the  day  of  ,   19 — , 

plaintiff  filed  its  petition  in  the  district  court  of County, 

the  county  wherein  said  levy  was  made,  and  then  and  there 

commenced  a  civil  action  in  said  court,  against  the  said , 

and ,  and  numbered  on  the  docket  of  said  court  as 


case  number  ,  praying  therein,  among  other  things,  for 

the  sale  of  the  real  estate  hereinafter  described ;  and. 

Whereas,  such  proceedings  were  had  in  said  action,  that  by 

the  consideration  and  judgment  of  the  said  court,  on  the • 

day  of  ,  19 — ,  at  the  Term,  19 — ,  of  said  court, 

that  said  plaintiff  recovered  a  judgment  against  said  in 

said  court,  in  the  sum  of  $ ,  and  costs  of  suit ;  and, 

Whereas,  it  was  then  and  there  further  ordered,  adjudged 
and  decreed  by  said  court,  in  said  action,  that  unless  said  de- 
fendant,   ,  should  pay  the  costs  of  said  suit,  and  the  said 

plaintiff  the  amount  so  found  due,  within days  from  the 

entry  of  said  decree,  said  premises  should  be  ^sold,  and  an  order 


191  REAL   ESTATE   UNDER   EXECUTION. — SALE.  §  216 

of  sale  should  issue  therefor  to  the  sheriff  of  said  county,  com- 
manding him  that  he  should  cause  the  lands  and  tenements  in 
said  petition,  heretofore  mentioned  and  hereinafter  described  to 
be  appraised,  advertised  and  sold,  according  to  law,  and  return 
his  proceedings  to  said  court;  and, 

Whereas,  afterwards,  on  the  day  of  ,  19 — ,  in 

pursuance  to  said  orders  and  judgments  of  said  court,  and  order 
of  sale  issued  from  said  court  in  said  cause,  directed  to  said 
sheriff  of  said  county,  commanding  him  to  execute  said  order, 
and  in  all  things  to  be  governed  by  the  provisions  of  the  statute 
in  such  case  made  and  provided,  and  the  order  that  of  his  pro- 
ceedings thereon,  he  sliould  make  due  return;  and. 

Whereas,  ,   sheriff  as   aforesaid,   having   caused   said 

premises  to  be  appraised,  and  a  copy  of  said  appraisement  to  be 
duly  filed  in  the  ofBce  of  the  clerk  of  said  court,  and  having 

advertised  the  time  and  place  of  sale   of  same  in   ,   a 

weekly  newspaper,  printed  and  of  general  circulation  in  said 

county,  for  a  period  of days  prior  to  the  day  of  sale,  and 

otherwise  complied  with  said  orders  and  provisions  of  the  statute 

in  such  cases  made  and  provided,  did,  on  the  day  of 

,  19 — ,  at  the  front  door  of  the  courthouse  in  the  city  of 

,  in  said  county,  at  o'clock,  —  m.,  of  said  day, 

expose  and  sell  at  public  auction,  the  premises  hereinafter  men- 
tioned, and  thereupon,  ,  having  bid  for  said  premises  the 

sum  of  $ ,  said  sum  being  the  highest  and  best  bid  there- 
for, and  the  same  being  more  than  two-thirds  of  the  appraised 
value  thereof,  said  premises  were  then  and  there  struck  off  and 

sold  to  him,  the  said  ,  the  purchaser,  for  the  sum  above 

mentioned ;  and. 

Whereas,  the  said  court,  at  its  Term,  19 — ,  having 

examined  the  proceedings  aforesaid,  in  the  premises,  under  said 
order  of  sale,  and  being  satisfied  that  said  sale  had  been  made 
in  all  respects  in  pursuance  of  said  judgment  and  order  of  sale, 
and  in  accordance  with  the  provisions  and  requisites  of  the 
statute  regulating  such  sales,  did  order  that  said  sale  be  con- 
firmed, and  that  ,  sheriff  of  County,  Oklahoma, 


§216  merwine's  trial  of  title  to  land.  192 

should  convey  said  premises  by  deed  in  fee  simple  to  , 

the  purchaser. 

Now,  Know  Ye  that  I, said  sheriff  of County, 

by  virtue  of  said  judgment,  order  of  sale  and  confirmation  and 
of  the  statute  for  such  case  made  and  provided,  and  for  and  in 

consideration  of  said  premises  herein,  and  the  sum  of  $ , 

which  I  acknowledge  to  have  received  from  the  purchaser  above 
named,  do  hereby  grant,  sell  and  convey  unto  him,  the  said 
,  the  following  described  real  estate,  to- wit :  (Here  spe- 
cifically describe  same),  together  with  the  privileges  and  appur- 
tenances thereunto  belonging,  and  all  the  right,  title  and  interest 

of  the  said ,  and  of  all  other  persons,  parties  to  said  suit, 

on,  in  and  to  the  same. 

To  JlxvE  AND  TO  Hold  the  premises  aforesaid,  unto  said , 

his  heirs  and  assigns,  as  fully  and  completely  as  I,  said  sheriff, 

of County,  Oklahoma,  by  virtue  of  said  judgment,  order 

of  sale,  sale  and  confirmation,  and  the  statute  made  and  provided 
for  such  case,  might  and  should  sell  and  convey  the  same. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  this 
day  of ,  19—. 


Sheriff  of County,  Oklahoma. 

State  of  Oklahoma,  County,  ss. : 

Before  me, ,  a  notary  public  in  and  for  said  county  and 

State,  on  this  day  of ,  19 — ,  personally  appeared 

,  to  me  known  to  be  the  identical  person  who  executed 

the  within  and  foregoing  instrument,  and  acknowledged  to  me 
that  he  executed  the  same  in  his  capacity  therein  stated,  as  his 
free  and  voluntary  act  and  deed  for  the  uses  and  purposes 
therein  set  forth.  , 

My  commission  expires .  Notary  Public. 


CHAPTER   VII. 


LAW  AND  PROCEDURE  BY  WHICH  REAL  ESTATE  IS 
SOLD  BY  AN  EXECUTOR  OR  ADMINISTRATOR. 


SECTION 

217.  Both   real    and   personal   prop- 

erty may  be  sold  to  pay  debts 
— No  priority  as  to  either. 

218.  The  court  may  decree  personal 

property  to  be  -sold  tirst. 

219.  No  sale  can  be  made  except -by 

order  of  court — One  petition 
for  whole  estate. 

220.  Tlie  petition  nmist  be  in  writing 

— Objections  thereto  must  be 
in  writing. 

221.  An   executor   or    administrator 

may  sell  real  estate,  when. 

222.  The  allegations  of  the  petition 

— ^The  petition  must  be  veri- 
fied. 

223.  The  order  upon  the  hearing  of 

the  petition  must  contain 
what. 

224.  The  order  to  be  posted  in  three 

public  places — The  order  to 
be  mailed — The  publication 
of  the  order. 

225.  I'he  hearing  of  the  petition  by 

the  court — The  proof  in  such 
cases. 

226.  Who  may  be  examined  as  wit- 

nesses at  the  hearing. 

227.  When  all  the   real  estate  may 

be  sold. 

228.  The  court  may  order  the  whole 

or  part  of  the  estate  sold. 

229.  The    order    must    describe    the 

real  estate  to  be  sold  and 
also  the  terms  of  sale — Sale 
may  be  made  for  cash  or 
credit. 

230.  Additional     bond     required    in 

sale  of  real  estate,  when. 


SECTION 

231.  Proceedings  by  an  administra- 

tor or  executor  in  the  sale 
of  land  void,  when. 

232.  When    person    interested    may 

apply  for  order  of  sale. 

233.  The   notice   of   time   and   place 

of  sale. 

234.  Where    public     sale    must    be 

made. 

235.  The   notice   in   case  of   private 

sale. 

236.  The   real   estate   must   be   sold 

for  ninety  per  cent,  of  the 
appraisement. 

237.  Balance   of   purchase   price   se- 

cured by  mortgage. 

238.  The  executor  or  administrator 

required  to  make  return  of 
his  proceedings  under  the 
order  of  sale. 

239.  Objections    may    be    made    to 

confirmation  of  sale. 

240.  The  confirmation  of  sale — ^Tbe 

deed  to  the  purchaser. 

241.  The  deed  to  the  purchaser. 

242.  Facts  to  be  proved  before  con- 

firmation of  sale. 

243.  Tlie    sale    may    be    postponed, 

when. 

244.  The  notice  required  in  case  of 

postponement. 

245.  When    properly    designated   by 

will  must  be  applied  to  the 
payment  of  debts. 

246.  When  in  an  estate  by  will  an 

executor  may  sell  real  estate 
without  order  of  court. 

247.  When  property  not  disposed  of 

by  will  may  be  sold. 


193 


MERWINE  S   TRIAL   OF    TITLE    TO   LAND. 


194 


SECTION 

248.  The    property   of    legatees   and 

devisees  liable  for  debts, 
when. 

249.  Devisees     and     legatees     must 

contribute  to  pay  debts, 
when. 

250.  Decedent's    interest    in    a    con- 

tract for  the  purchase  of 
land  may  be  sold. 

251.  Such  sale  to  be  subject  to  pay- 

ments falling   due. 
25fi.  The   purchaser's    bond   and    its 

condition. 
2^3.  The  confirmation  of  such  sale. 

254.  Real    estate    may    be    sold    by 

an  executor  or  administrator 
subject  to  mortgage  or  other 
lien. 

255.  The  mortgagee  may  be  a   pur- 

chaser. 

256.  Neglect   or    misconduct   on   the 

part  of  executor  or  admin- 
istrator may  cause  liability 
on  his  bond. 

257.  Fraudulent    sale    by    adminis- 

trator or  executor — Liability 
in  double  the  value  of  the 
property. 

258.  The  limitation  as  to  the  action 

to  recover  land  sold  by  an 
executor  or  administrator. 

259.  Limitation    not    applicable    to 

minors,  when. 

260.  The  sale  by  an  executor  or  ad- 

ministrator m.ust  be  returned 
at  the  next  term  of  the 
county  court — The  return  of 
sale  to  be  verified. 

261.  An    executor   or    administrator 

may  not  purchase  at  his  sale. 

262.  Property  fraudulently  conveyed 

by  a  decedent  may  be  recov- 
ered and  sold  by  the  executor 
or  administrator,  when. 

263.  Executor  or  administrator  not 

required  to  sue  unless  upon 
application    of   creditors. 

264.  Real    estate   so   recovered   may 

be  sold,  how. 


SECTION 

265.  Land  sold  by  executor,  admin- 

istrator, guardian,  sheriff  or 
commissioner  by  court  and 
afterward  recovered,  posses- 
sion not  given  until  pur- 
chaser has  been  refunded 
purchase  money  with  in- 
terest. 

266.  How  publication  made. 

267.  All   orders  must  be  entered  in 

minute  form — Xeed  not  recite 
facts   showing  jurisdiction. 

268.  Decree     recorded    in    office     of 

register  of  deeds — Notice  to 
all  persons. 

269.  When  description  of  real  estate 

need  not  be  published. 

270.  Parties     to     the     action — How 

designated. 

271.  The    petition — Ordinary    form. 

272.  The  order  for  the  hearing. 

273.  The  notice  of  the  hearing  and 

the  proof  of  posting  the  same 
— Proof  of  mailing. 

274.  The  proof  of  publication  of  the 

notice  of  the  hearing  of  the 
petition. 

275.  The  decree  for  the  sale  of  real 

estate. 

276.  The  order  appointing  appraisers 

of  real  estate. 

277.  The     report    of    sale     of    real 

estate  by  administrator. 

278.  Ihe    notice    of    the    hearing    of 

administrator's  return  of  sale 
of  real  estate. 

279.  Order  for  hearing  of  the  return 

of  sale  of  real  estate  by  an 
administrator. 

280.  The    notice    of    hearing   return 

of  sale  of  real  estate. 

281.  The  legal  notice  of  sale  of  real 

estate  by  an  administrator 
and  the  proof  of  posting 
same. 

282.  The   notice   of   publication  and 
the  proof  of  sale. 

283.  The    appraisal    before    private 

sale  of  land  by  an  admin- 
istrator. 


195                   SALE    OF    REAL   ESTATE  BY    AN    EXECUTOR.          §§217,218 

SECTION  SECTION 

284.  l^ie  bid  in  writing.  286.  The   form    for    a   deed   to    pur- 

285.  The   order   approving  and  con-  chaser   of    real    estate    at   an 

firming    sale    of    real    estate  administrator's    sale    thereof, 
by    an    administrator — Order 
for  deed  to  purchaser. 


Sec.  217.     Both  real  and  personal  property  may  be  sold  to 
pay  debts — No  priority  as  to  either. 

All  the  property  of  a  decedent,  except  as  otherwise  pro- 
vided for  the  homestead  and  personal  property  set  apart  for 
the  surviving  wife  or  husband  and  minor  child  or  children, 
will  be  chargeable  vv'ith  the  payment  of  the  debts  of  the 
deceased,  the  expenses  of  the  administration  and  the  allow- 
ance to  the  family.  And  the* property,  personal  and  real,  may 
be  sold  as  the  court  may  direct,  in  the  manner  hereinafter 
set  out  in  this  chapter.  There  shall  be  no  priority  as  be- 
tween  personal   and   real   property   for   the   above   purposes.^ 

Attention  is  here  called  to  section  836,  herein,  for  detailed 
statement  of  the  reason  for  great  care  in  proceedings  of  the 
kind  set  forth  in  this  chapter. 

Sec.  218.     The  court  may  decree  personal  property  to  be  sold 
first. 

Whenever  it  appears  to  the  court  on  any  hearing  of  an 
application  for  the  sale  of  real  property,  that  it  would  be  for 
the  interest  of  the  estate  that  personal  property  of  the 
estate,  or  some  part  of  such  property,  should  be  first  sold, 
the  court  may  decree  the  sale  of  such  personal  property,  or 
any  part  of  it,  and  the  sale  thereof  shall  be  conducted  in  the 
same  manner  as  if  the  application  had  been  made  for  the 
sale  of  such  property  in  the  first  instance." 

1  Snyder,    5.200;     Wilson,     1,641;  458;   Plains  Ld.  &  I.  Co.,  et  al.,  v. 

California,    1,516     (Kerr),    similar;  Lynch,    et    al.,    38    Mont.    271,    99 

Dakota   Code,  5,812    (1887);    Estate  Pac.    847. 

of  Woodworth,  31  Cal.  505:  McDon-  2  Snyder,    5,395;     Wilson,    1,737; 

aid  V.  :McElroy,  60  Cal.  484;  Burris  Dakota  Code,  5,905. 
V.   Kennedy,    108   Cal.    331,  41   Pac. 


§§219,220        merwine's  trial  of  title  to  land.  196 

Sec.  219.  No  sale  can  be  made  except  by  order  of  court — One 
petition  for  whole  estate. 

No  sale  of  any  property  of  an  estate  of  a  decedent  is  valid 
unless  made  under  order  of  the  county  court,  except  as 
otherwise  hereinafter  provided.  All  sales  must  be  reported 
under  oath,  and  confirmed  by  the  county  court,  before  title 
to  the  property  sold  passes.^  However,  when  the  estate  is 
insolvent  but  one  petition  need  be  filed.  This  is  provided  by 
special  statute  as  follows : 

When  it  appears  to  the  court  that  the  estate  is  insolvent, 
or  that  it  will  require  a  sale  of  all  the  property  of  the  estate 
of  every  character,  chargeable  therewith,  to  pay  the  family 
allowance,  expenses  of  administration  and  debts,  there  need 
be  but  one  petition  filed,  but  one  order  of  sale  made,  and 
but  one  sale  had,  except  in  case  of  sale  of  perishable  prop- 
erty. The  county  court,  when  a  petition  for  the  sale  of  any 
property  for  the  purposes  herein  named,  is  presented,  must 
inquire  fully  into  the  probable  amount  required  to  make  all 
such  payments,  and  if  there  be  no  more  estate  chargeable 
therewith  than  Is  sufficient  to  pay  the  same,  may  require  but 
one  proceeding  for  the  sale  of  the  entire  available  estate.  In 
such  ease  the  petition  must  set  forth  all  the  facts  required 
by  the  sections  relating  to  the  sale  of  real  estate.* 

Sec.  220.  The  petition  must  be  in  writing — Objections  thereto 
must  be  in  writing. 
All  petitions  for  orders  of  sale  must  be  in  writing,  setting 
forth  the  facts  showing  the  sale  to  be  necessary,  and  upon 
the  hearing,  any  person  interested  in  the  estate  may  file  his 
written  objections,  which  must  be  heard  and  determined.  A 
failure  to  set  forth  the  facts  showing  the  sale  to  be  necessary 
will  not  invalidate  the  subsequent  proceedings,  if  the  defects 
be  supplied  by  the  proofs  at  the  hearing,   and  the   general 


3  Snyder,    5,300;     Wilson,    1,642;  *  Snyder,    5,301;    Wilson,    1,644; 

Dakota    Code,    5,813    (1887);    Cali-       Dakota   Code    (1887),   5,815. 
iornia,    1,517    (Kerr),  similar. 


197  SALE   OP    REAL   ESTATE   BY    AN   EXECUTOR.         §§  221,  222 

facts  showing  the  necessity  be  stated  in  the  order  directing 
the  sale.^ 

Sec.  221.     An  executor  or  administrator  may  sell  real  estate, 
when. 

When  a  sale  of  property  of  an  estate  is  necessary  to  pay 
the  allowance  of  the  family,  or  debts  outstanding  against 
the  decedent,  or  debts,  expenses  or  charges  of  administra- 
tion, or  legacies,  the  executor  or  administrator  may  also  sell 
any  real,  as  well  as  personal  property  of  the  estate  in  his 
hands,  and  chargeable  for  that  purpose,  upon  order  of  the 
county  court,  and  an  application  for  the  sale  of  real  estate 
may  also  embrace  the  sale  of  personal  property.® 

Sec.  222.    The  allegations  of  the  petition — The  petition  must 
be  verified. 

To  obtain  an  order  for  the  sale  of  real  property,  he  must 
present  a  verified  petition  in  the  county  court,  or  to  the 
judge  thereof,  setting  forth  the  amount  of  personal  property 
that  has  come  into  his  hands  as  assets,  and  how  much  thereof, 
if  any,  remains  undisposed  of;  the  debts  outstanding  against 
the  decedent,  as  far  as  can  be  ascertained  or  estimated;  and 
the  amount  due  on  family  allowance,  or  that  will  be  due 
after  the  same  has  been  in  force  for  one  year;  the  debts, 
expenses  and  charges  of  administration  already  accrued,  and 
an  estimate  of  what  will  or  may  accrue  during  the  admin- 
istration; a  general  description  of  all  the  real  property, 
except  the  homestead,  of  which  the  decedent  died  seized,  or 
in  which  he  had  any  interest,  or  in  which  the  estate  has 
acquired  any  interest,  and  the  condition  and  value  thereof; 
the  names  of  the  legatees  and  devisees,  if  any,  and  the  heirs 
of  the  decedent,  so  far  as  known  to  petitioner.  If  any  of 
the  matters  herein  enumerated  cannot  be  ascertained,  it  must 


6  Snyder,     5,301;     Wilson,     1,643;  R  Snyder,     5,308;     Wilson,     1652; 

Dakota    Code,    5,814    (1887);    Cali-       Dakota   Code,    5,821     (1887);    Cali- 
fornia,   118,    identical.  fornia,   1,537,   similar. 


§§223,224       merwine's  trial  of  title  to  land.  198 

be  so  stated  in  the  petition ;  but  a  failure  to  set  forth  the 
facts  showing  the  sale  to  be  necessary  will  not  invalidate  the 
subsequent  proceedings  if  the  defects  be  supplied  by  the 
proofs  at  the  hearing,  and  the  general  facts  showing  such 
necessity  be  stated  in  the  decree/ 

Sec.  223.  The  order  upon  the  hearing  of  the  petition  must 
contain  what. 
If  it  appears  to  tlie  court,  or  judge,  from  such  petition,  that 
it  is  necessary  to  sell  the  whole  or  some  portion  of  such  real 
estate  for  the  purposes  and  reasons  mentioned  in  the  pre- 
ceding section,  or  any  of  them,  such  petition  must  be  filed, 
and  an  order  thereupon  made,  directing  all  persons  interested 
in  the  estate  to  appear  before  the  court,  at  a  time  and  place 
specified,  not  less  than  four,  nor  more  than  ten  weeks  from 
the  time  of  making  such  order,  to  show  cause  why  an  order 
should  not  be  granted  to  the  executor  or  administrator  to 
sell  so  much  of  the  real  estate  of  the  decedent  as  is  necessary.^ 

Sec.  224.  The  order  to  be  posted  in  three  public  places — The 
order  to  be  mailed — The  publication  of  the 
order. 

The  county  judge  is  required  to  cause  copies  of  the  order 
to  show  cause  to  be  posted  up  in  three  public  places  in 
the  county,  one  of  which  must  be  at  the  courthouse  where 
the  hearing  is  to  be  held,  and  a  copy  personally  served  on 
or  mailed  to  all  persons  interested  in  the  estate,  any  general 
guardian  of  a  minor  so  interested,  and  any  legatee  or 
devisee  or  heir  of  the  deceased :  Provided,  they  are  residents 
of  the  county,  at  least  ten  days  before  the  time  set  for  said 
hearing.  He  must  cause  copies  of  said  order  to  be  mailed  to 
all  such  persons  who  are  not  residents  of  the  county,  with 

7  Snyder,  5,309;  Wilson,  1,653:  s  Snyder,  5,310;  Wilson,  1,654; 
Dakota  Code,  5,822  (1887):  Cali-  Dakota  Code,  5,823  (1887);  Cali- 
fornia. 1,537,  similar.  See  Section  fornia,  1,538,  similar.  See  Section 
271  for  orocedino;  in  sale  of  real  272  for  form  for  order  for  the  hear- 
estate  by  administrator.  ing.                » 


199  SALE   OF    REAL   ESTATi:   liZ    AIC    ZXECUTOR.         §§225,226 

the  postage  thereon  prepaid.  If  the  postoffice  of  any  such 
person  is  unknown,  a  copy  of  such  order  to  show  cause 
must  be  published  for  two  successive  weeks  in  some  news- 
paper published  in  said  county,  and  said  hearing  shall  not 
be  less  than  fifteen  days  from  the  date  of  the  first  publication 
of  such  notice.  Provided,  that,  if  all  persons  interested  in 
the  estate  join  in  the  petition  for  the  sale,  or  signify  in 
writing  their  assent  thereto,  no  notice  thereof  shall  be  given, 
and  the  court  must  proceed  at  once  to  hear  the  same.^ 


Sec.   225.     The  hearing   of  the   petition  by  the   court — The 
proof  in  such  cases. 

If  all  persons  interested  in  said  estate  do  not  file  in  court 
their  written  consent  to  such  sale,  the  county  court,  at  the 
time  and  place  appointed  in  such  order,  or  at  such  other  time 
to  which  the  hearing  may  be  postponed,  upon  satisfactory 
proof  of  service,  or  publication  of  a  copy  of  the  order  to 
show  cause,  and  by  posting  the  same  as  provided  in  this 
act,  by  affidavit  or  otherwise,  must  proceed  to  hear  the  peti- 
tion and  hear  and  examine  the  allegations  and  proofs  of  the 
petitioners  and  of  all  persons  interested  in  the  estate  who 
may  oppose  the  application.^" 

Sec.  226.    Who  may  be  examined  as  witnesses  at  the  hearing. 

The  executor,  administrator  and  witnesses  may  be  exam- 
ined on  oath,  by  either  party,  and  process  to  compel  them 
to  attend  and  testify  may  be  issued  by  the  judge  of  the 
county  court,  in  the  same  manner  and  with  like  effect  as  in 
other  cases.^^ 


9  Snyder,  5,311,  amended  March  1910;  California,  1,540,  similar. 
17,  1910;  Sec.  5,  Chap.  65,  S.  L.  See  Section  274  for  form  for  proof 
1910;  California,  1539,  similar.  of  publication  of  notice  and  mailing. 
See  Section  273  for  forms  of  notice,  n  Snyder,  5,313;  Wilson,  1,657; 
proof  of  posting  and  mailing.  Dakota  Code,  5,826    (1887). 

10  Snyder,    5.312,    amended    March 
17,    1910;    Sec.    6,    Chap.    65,    S.    L. 


§§227-229  merwine's  trial  of  title  to  land.  200 

Sec.  227.    When  all  the  real  estate  may  be  sold. 

If  it  appear  necessary  to  sell  a  part  of  the  real  estate,  and 
that  by  a  sale  thereof  the  residue  of  the  estate,  real  or 
personal,  or  some  specific  part  thereof,  would  be  greatly 
injured  or  diminished  in  value,  or  subjected  to  expense,  or 
rendered  unprofitable,  or  that  after  such  sale  the  residue 
would  be  so  small  in  quantity  or  value,  or  would  be  of  such 
a  character  with  reference  to  its  future  disposition  among 
the  heirs  or  devisees,  as  clearly  to  render  it  for  the  best 
interests  of  all  concerned  that  the  same  should  be  sold,  the 
court  may  authorize  the  sale  of  the  whole  estate,  or  of  any 
part  thereof,  necessary  and  for  the  best  interest  of  all  con- 
cerned.^^ 

Sec.  228.  The  court  may  order  the  whole  or  part  of  the 
estate  sold. 
If  the  court  be  satisfied,  after  a  full  hearing  upon  the 
petition  and  the  examination  of  the  proofs  and  allegations 
of  the  parties  interested,  that  a  sale  of  the  whole  or  some 
portion  of  the  real  estate  is  necessary,  for  any  of  the  causes 
mentioned  in  this  chapter,  or  if  such  sale  be  assented  to  by 
all  persons  interested,  an  order  must  be  made  to  sell  the 
whole  or  so  much  and  such  parts  of  the  real  estate  described 
in  the  petition  as  the  court  shall  judge  necessary  or  ben- 
eficial.^^ 

Sec.  229.     The  order  must  describe  the  real  estate  to  be  sold 
and  also  the  terms  of  sale — Sale  may  be  made 
for  cash  or  credit. 
The  order  of  sale  must  describe  the  lands  to  be  sold  and 
the  terms  of  sale,  which  may  be  for  cash,  or  may  be  for  one- 
third   cash   and  the   balance   on  a  credit  not   exceeding  two 
years,  payable  in  gross  or  installments  within  that  time,  with 


12  Snyder,    5,314;    Wilson,    1,658;  i3  Snyder,    5,315;    Wilson,    1,629; 

Dakota    Code,   5,827     (1887);    Call-       Dakota   Code,    5,828     (1887);    Cali- 
fornia,  1,542    (Kerr),   similar.  fornia,   1,543    (Kerr),  similar. 


201  SALE   OF    REAL   ESTATE   BY   AN   EXECUTOR.  §  230 

interest,  as  the  court  may  direct.  The  land  may  be  sold 
in  one  parcel  or  in  subdivisions,  as  the  executor  or  admin- 
istrator shall  judge  most  beneficial  to  the  estate,  unless  the 
court  otherwise  specially  directs.  If  it  appears  that  any 
part  of  such  real  estate  has  been  devised  and  not  charged 
in  such  devise  with  the  payment  of  debts  or  legacies,  the 
court  must  order  the  remainder  to  be  sold  before  that  so 
devised.  Every  such  sale  must  be  ordered  to  be  made  at 
public  auction,  unless,  in  the  opinion  of  the  court,  it  would 
benefit  the  estate  to  sell  the  whole  or  some  part  of  said 
real  estate  at  private  sale ;  the  court  may,  if  the  same  is 
asked  for  in  the  petition,  order  or  direct  such  real  estate, 
or  any  part  thereof,  to  be  sold  either  at  public  or  private 
sale,  as  the  executor  or  administrator  shall  judge  most 
beneficial  to  the  estate.  If  the  administrator  or  executor 
neglects  or  refuses  to  make  a  sale  under  the  order  as  di- 
rected therein,  he  may  be  compelled  to  sell,  by  order  of 
court,  made  on  motion,  after  due  notice,  by  any  party 
interested.^* 

Sec.  230.  Additional  bond  required  in  sale  of  real  estate, 
when. 
The  judge  must  require  an  additional  bond  whenever  the 
sale  of  any  real  estate  belonging  to  an  estate  is  ordered  by 
him;  but  no  such  additional  bond  must  be  required  when 
it  satisfactorily  appears  to  the  court  that  the  penalty  of  the 
bond  given  before  receiving  letters  or  any  bond  given  in 
place  thereof  is  equal  to  twice  the  value  of  the  personal 
property  remaining  in,  or  that  will  come  into  the  possession 
of  the  administrator,  or  executor,  including  the  annual  rents, 
profits,  and  issues  of  real  estate  belonging  to  the  estate,  and 
twice  the  probable  amount  to  be  realized  on  the  sale  of  the 
real  estate  ordered  to  be  sold.^^ 

"Snvder,    5,316;    Wilson,    1,660;  is  Snyder,    5,213;    Wilson,    5,554; 

Dakota    Code,    5,829    (1887);    Cali-       Dakota    Code,   5,757    (1887);    Cali- 
fornia,   1,544    (Kerr),   similar.     See      fornia,  1,389,  similar. 
Section  275  for  form  for  decree  and 
order  of  sale. 


§  231  merwine's  trial  of  title  to  land,  202 

Sec.  231.     Proceedings  by  an  administrator  or  executor  in  the 
sale  of  land  void,  when. 

Where  there  is  a  total  want  of  jurisdiction  of  the  subject- 
matter  in  all  sales  made  by  an  administrator,  executor  or  guard- 
ian, the  proceedings  are  void  and  a  mere  nullity,  and  confer 
no  rights  and  afford  no  justification,  and  may  be  rejected 
when  collaterally  drawn  into  question.  The  doctrine  of 
caveat  emptor,  as  it  applies  to  judicial  sales,  is  based  upon 
the  theory  that  the  purchaser  buys  only  such  estate  or  in- 
terest as  his  debtor  has,  and  he  is  bound  to  take  notice  what 
that  interest  is.  The  following  was  quoted  with  approval, 
from  Freeman  on  Void  Judicial  Sales  by  the  Supreme  Court 
of  our  State : 

"Every  purchaser  has  the  right  to  suppose  that  by  his 
purchase  he  will  obtain  of  the  defendant  in  execution,  in 
case  of  execution  sales,  and  of  the  Avard  or  decedent  in  the 
case  of  guardian's  or  administrator's  sale.  The  promise  to, 
convey  his  title  is  the  consideration  upon  Avhich  his  bid  is 
made.  If  the  judgment  or  order  of  sale  is  void,  or  if,  from 
any  cause  the  conveyance,  when  made,  cannot  invest  him 
with  the  title  held  by  the  parties  to  the  suit  or  proceeding, 
then  his  bid  or  other  promise  to  pay,  is  without  considera- 
tion, and  cannot  be  enforced.  He  may  successfully  resist 
any  action  for  the  purchase  money,  whether  based  upon  the 
bid  or  some  bond  or  note  given  by  him.  It  has  been  held 
that  the  rule  caveat  emptor  does  not  apply  to  cases  in  which 
the  court  had  no  jurisdiction  to  direct  the  sale  at  which  the 
purchaser  bid,  and  that  in  such  case  the  purchaser  might 
have  restitution  of  the  purchase  money  even  after  confirma- 
tion of  the  sale.  And  generally  it  has  been  held  that  a  pur- 
chaser at  a  judicial  sale  which  is  void  for  want  of  jurisdic- 
tion in  the  court  to  order  the  sale,  or  for  other  cause,  may 
resist  the  payment  of  the  purchase  money,  even  after  the 
purchaser's  bid  had  been  accepted  by  the  court. "^® 

isZufall  V.  Peyton,  26  Okla.  808,  Thompson  v.  Tolmie,  2  Pet.  157, 
110  Pac.  773;  Maupin,  Marketable  7  L.  Ed.  381;  Freeman,  Void  Judi- 
Title  to  Real  Estate    (2d  ed.),  82;       cial  Sales,  Sec.  48. 


203        SALE  OF  REAL  ESTATE  BY  AN  EXECUTOR.    §§  232-234 

Sec.  232.  When  person  interested  may  apply  for  order  of 
sale. 
If  the  executor  or  administrator  neglects  to  apply  for  any 
order  of  sale  when  it  is  necessary,  any  person  may  make 
application  therefor  in  the  same  manner  as  the  executor  or 
administrator,  and  notice  thereof  must  be  given  to  the  exe- 
cutor or  administrator  before  the  hearing.  The  petition  of 
such  applicant  must  contain  as  many  of  the  matters  re- 
quired for  the  petition  of  the  executor  or  administrator  as 
he  can  ascertain,  and  the  decree  of  sale  must  fix  the  period 
of  time  within  which  the  executor  or  administrator  must 
make   the   sale.^' 

Sec.  233.     The  notice  of  time  and  place  of  sale. 

When  a  sale  is  ordered  to  be  made  at  public  auction,  notice 
of  the  time  and  place  of  sale  must  be  posted  up  in  three 
public  places  in  the  county  in  which  any  part  of  the  land 
to  be  sold  is  situated,  and  in  the  county  where  the  order  is 
made,  and  published  in  each  of  said  counties  in  some  news- 
paper printed  in  the  county  for  two  successive  weeks.  The 
lands  and  tenements  to  be  sold  must  be  described  with  com- 
mon certainty  in  the  notice.  The  day  of  sale  must  be  at 
least  fifteen  days  from  the  date  of  the  first  publication  of 
the  notice. ^^ 

Sec.  234.    Where  public  sale  must  be  made. 

Sales  at  public  auction  must  be  made  in  the  county  where 
the  land  is  situated;  but  when  the  land  is  situated  in  two 
or  more  counties  it  may  be  sold  in  either.  The  sale  must 
be  made  between  the  hours  of  nine  o'clock  in  the  morning 
and  the  setting  of  the  sun  on  the  same  day,  and  must  be 
made  on  the  day  named  in  the  notice  of  sale  unless  the  same 
is  postponed.^^ 

IT  Snyder,    5,317;    Wilson,    1,661;  for    notice    of    sale    of    real    estate 

Dakota"  Code,   1,531    (1887).  V    administrator;    see    Section    282 

18  Snyder,    5,318,    amended   March  for  proof  of  sale. 
17,  1910,  Sec.  7,     Cliap.    65,    S.    L.  i9  Snyder,    5,319;    Wilson,    1,663; 

1910.       See    Section    281    for    form  Dakota  Code,   5,832    (1887). 


§§235,236         merwine's  trial  of  title  to  land.  204 

Sec.  235.     The  notice  in  case  of  private  sale. 

When  a  sale  of  real  estate  is  ordered  to  be  made  at  private 
sale,  notice  of  the  same  must  be  posted  up  in  three  of  the 
most  public  places  in  the  county  in  which  the  land  is  situated, 
and  published  in  a  newspaper,  if  there  be  one  printed  in  the 
same  county;  if  none,  then  in  such  paper  as  the  court  may 
direct,  for  tAvo  weeks  successively  next  before  the  day  on 
or  after  which  the  sale  is  to  be  made,  in  which  the  lands 
and  tenements  to  be  sold  must  be  described  with  common 
certainty.  The  notice  must  state  a  day  on  or  after  which 
the  sale  will  be  made,  and  the  place  where  offers  or  bids 
will  be  received.  The  day  last  referred  to  must  be  at  least 
fifteen  days  from  the  first  publication  of  the  notice,  and  the 
sale  must  not  be  made  before  that  day,  but  must  be  made 
within  six  months  thereafter.  The  bids  or  offers  must  be 
in  writing,  and  may  be  left  at  the  place  designated  in  the 
notice  or  delivered  to  the  executor  or  administrator  per- 
sonally, or  may  be  filed  in  the  office  of  the  judge  of  the 
county  court,  to  which  the  return  of  the  sale  must  be  made, 
at  any  time  after  the  first  publication  of  notice,  and  before 
the  making  of  the  sale.  If  it  is  shown  that  it  will  be  for 
the  best  interest  of  the  estate,  the  court  or  judge,  may,  by 
order,  shorten  the  time  of  notice,  which  shall  not,  however, 
be  less  than  one  week,  and  may  provide  that  the  sale  be  made 
on  or  after  a  day  less  than  fifteen,  but  not  less  than  eight 
days  from  the  first  publication  of  the  notice ;  in  which  case 
the  notice  of  sale  and  the  sale  may  be  made  to  correspond 
with  such  order.-*^ 

Sec.  236.    The  real  estate  must  be  sold  for  ninety  per  cent, 
of  the  appraisement. 

No  sale  of  real  estate  at  private  sale  can  be  confirmed  by 
the  court  unless  the  sum  offered  is  at  least  ninety  per  cent. 


20  Snyder,    5,320;    Wilson,    1,664:       at    private    sale;     see    Section    284 
Dakota    Code,    5,833     (1887).      See       for  form  for  bid. 
Section  283   for  form  for  appraisal  ,. 


205  SALE    OF   REAL,   ESTATE   BY    AN   EXECUTOR.         §§  237,  238 

of  the  appraised  value  thereof,  nor  unless  such  real  estate 
has  been  appraised  within  one  year  of  the  time  of  such  sale. 
If  it  has  not  been  so  appraised,  or  if  the  court  is  satisfied  that 
the  appraisement  is  too  high,  or  too  low,  appraisers  must  be 
appointed,  and  they  must  make  an  appraisement  thereof  in 
the  same  manner  as  in  case  of  an  original  appraisement  of 
an  estate.  This  may  be  done  at  any  time  before  the  sale  or 
the  confirmation  thereof.-^ 

Sec.  237.    Balance  of  purchase  price  secured  by  mortgage. 

The  executor  or  administrator  must,  when  a  sale  is  made 
upon  a  credit,  take  the  notes  of  the  purchaser  for  the  pur- 
chase money,  with  a  mortgage  on  the  property  to  secure  their 
payment.^^ 

Sec.  238.  The  executor  or  administrator  required  to  make 
return  of  his  proceedings  under  the  order  of  sale. 
The  executor  or  administrator,  after  making  any  sale  of 
real  estate,  must  mal^e  a  return  of  this  proceedings  to  the 
county  court,  which  must  be  filed  by  the  judge,  at  any  time 
subsequent  to  the  sale,  either  in  term  or  vacation.  If  the 
sale  be  made  at  public  auction  and  the  return  is  made  and 
filed  on  or  before  the  first  day  of  the  next  term  thereafter, 
no  notice  is  required  of  such  return  or  of  the  hearing  thereof, 
but  the  hearing  may  be  had  on  the  first  day  of  the  term, 
or  any  subsequent  day  to  which  the  same  may  be  post- 
poned. If  the  sale  be  not  made  at  public  auction,  or  if 
made  at  public  auction,  a  hearing  upon  the  return  of  the 
proceedings  be  asked  for  in  the  return,  or  is  brought  on 
for  a  hearing  upon  a  day  before  the  first  day  of  the  next 
term  thereafter,  or  upon  any  other  day  than  the  first  day 
of  the  next  term  after  such  sale,  the  court  or  judge  must 
fix  the  day  for  the  hearing,  of  which  notice  of  at  least  ten 

21  Snyder,    5,321;    Wilson,    1,665;       Section  276  for  form  for  order  ap- 
Dakota"  Code,    5,834    (1887);    Cali-       pointing  appraisers. 
fornia,  1,550  (Kerr),  identical.     See  22  Snyder,    5.322;    Wilson,    1,666; 

Dakota  Code,  5,835    (1887). 


§§239,240        merwine's  trial  of  title  to  land.  206 

days  must  be  given  by  tlie  judge,  by  notices  posted  in  three 
public  places  in  the  county,  or  by  publication  in  a  news- 
paper, or  both,  as  he  may  deem  best,  and  must  briefly  indi- 
cate the  land  sold,  the  sum  for  which  it  was  sold,  and 
must  refer  to  the  return  for  further  particulars.  Upon  the 
hearing,  the  court  must  examine  the  return  and  witnesses 
in  relation  to  the  same,  and  if  the  proceedings  were  unfair, 
or  the  sum  bid  disproportionate  to  the  value,  and  if  it  appear 
that  a  sum  exceeding  such  bid  at  least  ten  per  cent.,  exclu- 
sive of  expense  of  a  new  sale,  may  be  obtained,  the  court 
may  vacate  the  sale,  and  direct  another  to  be  had,  of  which 
notice  must  be  given,  and  the  sale  in  all  respects  conducted 
as  if  no  previous  sale  had  taken  place ;  if  an  offer  of  ten 
per  cent,  more  in  amount  than  that  named  in  the  return,  be 
made  to  the  court  in  writing,  by  a  responsible  person,  it  is 
in  the  discretion  of  the  court  to  accept  such  offer  and  con- 
firm the  sale  to  such  person  or  to  order  a  new  sale.^^ 

Sec.  239.     Objections  may  be  made  to  confirmation  of  sale. 

When  the  return  of  sale  is  made  and  filed,  any  person  in- 
terested in  the  estate  may  file  written  objections  to  the 
confirmation  thereof,  and  may  be  heard  thereon  when  the 
return  is  heard  by  the  court,  or  judge,  and  may  produce 
witnesses  in  support  of  his  objections.-* 

Sec.  240.     The  confirmation  of  sale — The  deed  to  the  pur- 
chaser. 

If  it  appear  to  the  court  that  the  sale  was  legally  made 
and  fairly  conducted,  and  the  sum  bid  was  not  dispropor- 
tionate to  the  value  of  the  property  sold,  and  that  a  greater 

23  Snyder,  5,323;  Wilson,  1,607:  2*  Snyder,  5,324;  Wilson,  1,668; 
Dakota  Code,  5,836  (1887);  Cali-  Dakota  Code,  5.837  (1887);  Cali- 
fornia, 1,552  (Kerr),  similar.  See  fornia,  1,553;  identical.  See  Sec- 
Section  277  for  form  for  report  of  tion  280  for  form  for  notice  of 
sale;  Section  278  for  form  for  hearing  return, 
notice  of  hearing;  Section  279  for 
form  for  order  of  hearing.  »' 


207  SALE    OF   REAL   ESTATE   BY    AN    EXECUTOR.  §  241 

sum  as  above  specified,  cannot  be  obtained,  or  if  the  in- 
creased bid  mentioned  in  the  second  preceding  section,  be 
made  and  accepted  by  the  court,  the  court  must  make  an 
order  confirming  the  sale  and  directing  conveyances  to  be 
executed.  The  sale  from  that  time  is  confirmed  and  valid, 
and  a  certified  copy  of  the  order  confirming  it  and  directing 
conveyances  to  be  executed  must  be  recorded  in  the  office 
of  the  register  of  deeds  of  the  county  within  which  the  land  sold 
is  situated.  If  after  confirmation  the  purchaser  neglects  or 
refuses  to  comply  wath  the  terms  of  sale,  the  court  may, 
on  motion  of  the  executor  or  administrator,  and  after  notice 
to  the  purchaser,  order  a  resale  to  be  made  of  the  property. 
If  the  amount  realized  on  such  resale  does  not  cover  the 
bid  and  expenses  of  the  previous  sale,  such  purchaser  is 
liable  for  the  deficiency  to  the  estate.^^ 

Sec.  241.     The  deed  to  the  purchaser. 

Conveyances  must  thereupon  be  executed  to  the  purchaser 
by  the  executor  or  administrator,  and  they  must  refer  to 
the  orders  of  the  county  court  authorizing  and  confirming 
the  sale  of  the  property  of  the  estate,  and  directing  con- 
veyances thereof  to  be  executed,  and  to  the  record  of  the 
order  of  confirmation  in  the  office  of  the  register  of  deeds 
by  the  date,  volume  and  page  of  the  record,  and  such  ref- 
erence shall  have  the  same  efiPect  as  if  the  orders  were  at 
large  inserted  in  the  conveyance.  Conveyances  so  made 
convey  all  the  right,  title,  interest  and  estate  of  the  de- 
cedent in  the  premises,  at  the  time  of  his  death.  If,  prior 
to  the  sale,  by  operation  of  law  or  otherwise,  the  estate 
has  acquired  any  right,  title  or  interest  in  the  premises 
other  than,  or  in  addition  to,  that  of  the  decedent  at  the 
time  of  his  death,  such  right,  title  or  interest  also  passes 
by  such  conveyance.-'' 

25  Snyder,  5,325;  Wilson,  1,669:  26  Snyder,  5,326;  Wilson,  1.670; 
Dakota  Code,  5.838  (1887);  Cali-  Dakota  Code,  5,839  (1887);  Cali- 
fornia, 1,554,  similar.  See  Section  fornia,  1,555,  similar.  See  Section 
285  for  form  for  order  confirming  286  for  form  for  deed  to  purchaser, 
sale   of   real   estate. 


§§  242-245  MER wine's  trial  of  title  to  land.  208 

Sec.  242.  Facts  to  be  proved  before  confirmation  of  sale. 
Before  any  order  is  entered  confirming  the  sale,  it  must 
be  proven  to  the  satisfaction  of  the  court  that  notice  was 
given  of  the  sale  as  prescribed,  and  the  order  of  confirma- 
tion must  show  that  such  proof  was  made." 


Sec.  243.    The  sale  may  be  postponed,  when. 

If,  at  the  time  appointed  for  the  sale,  the  executor  or  ad- 
ministrator deems  it  for  the  interest  of  the  persons  concerned 
therein  that  the  same  be  postponed,  he  may  postpone  it  from 
time  to  time  not  exceeding  in  all  three  months.-* 


Sec.  244.     The  notice  required  in  case  of  postponement. 

In  case  of  a  postponement  notice  thereof  must  be  given,  by 
public  declaration,  at  the  time  and  place  first  appointed  for 
the  sale,  and  if  the  postponement  be  for  more  than  one 
day,  further  notice  must  be  given  by  posting  notices  in 
three  or  more  public  places  in  the  county  where  the  land  is 
situated,  or  publishing  the  same,  or  both,  as  the  time  and 
circumstances  will  admit.^^ 

Sec.  245.  When  property  designated  by  will  must  be  ap- 
plied to  the  payment  of  debts. 
If  the  testator  makes  provisions  by  his  will,  or  designates 
the  estate  to  be  appropriated  for  the  payment  of  his  debts, 
the  expenses  of  administration,  or  family  expenses,  they  must 
be  paid  according  to  such  provisions  or  designation,  out 
of  the  estate  thus  appropriated,  so  far  as  the  same  is  suffi- 
cient.^" 


27  Snyder,    5,327;    Wilson,    1,671;  29  Snyder,    5,329;    Wilson,    1,673; 
Dakota  Code,  5,840   (1887).                       Dakota  Code,  '5,842    (1887). 

28  Snyder,    5,328;    Wilson,    1,672  ^  so  Snyder,    5,330;    Wilson,    1,674; 
Dakota  Code,  5,841    (1887).                      Dakota    Code,    5,843    (1887);    Cali- 
fornia,   1,560,    identical. 


209        SALE  OF  REAL  ESTATE  BY  AN  EXECUTOR.    §§  246-248 

Sec.  246.  When  in  an  estate  by  will  an  executor  may  sell 
real  estate  without  order  of  court. 
"When  property  is  directed  by  will  to  be  sold,  or  authority 
is  given  in  the  will  to  sell  property,  the  executor  may  sell 
any  property  of  the  estate  without  the  order  of  the  county 
court,  and  at  either  public  or  private  sale,  with  or  without 
notice,  as  the  executor  may  determine ;  but  the  executor 
must  make  return  of  such  sale  as  in  other  cases ;  and  if 
directions  are  given  in  the  will  as  to  the  mode  of  selling, 
or  particular  property  to  be  sold,  such  directions  must  be 
observed.  In  either  case,  no  title  passes  unless  the  sale  is 
confirmed  by  the  court.^^ 

Sec.  247.     When  property  not  disposed  of  by  will  may  be 
sold. 

If  the  provisions  made  by  will,  or  the  estate  appropriated 
therefor,  is  insufficient  to  pay  the  debts,  expenses  of  admin- 
istration and  family  expenses,  that  portion  of  the  estate  not 
devised  or  disposed  of  by  will,  if  any,  must  be  appropriated 
and  disposed  of  for  that  purpose  according  to  the  provisions 
of  this  chapter. •'^- 

Sec.  248.     The  property  of  legatees  and  devisees  liable  for 
debts,   when. 

The  estate,  real  and  personal,  given  by  will  to  legatees  or 
devisees,  is  liable  for  the  debts,  expenses  of  administration 
and  family  expenses,  in  proportion  to  the  value  or  the  amount 
of  the  several  devises  or  legacies,  but  specific  devises  or 
legacies  are  exempt  from  such  liability  if  it  appears  to  the 
court  necessary  to  carry  into  effect  the  intention  of  the 
testator,  and  there  is  other  sufficient  estate.^^ 

31  Snyder,  5,331;  Wilson,  1,675;  33  Snyder,  5,333;  Wilson,  1,677; 
Dakota  Code,  5,844  (1887);  Cali-  Dakota  Code,  5,846  (1887);  Cali- 
fornia, 1,561,  identical.                               fornia,   1,563,  identical. 

32  Snyder,    5,332;    Wilson,    1,676; 
Dakota    Code,   5,845    (1887). 


§§  249-251        merwine's  trial  op  title  to  land.  210 

Sec.  249.     Devisees  and  legatees  must  contribute  to  pay  debts, 
when. 

When  an  estate  given  by  will  has  been  sold  for  the  pay- 
ment of  debts  or  expenses,  all  the  devisees  and  legatees 
must  contribute  according  to  their  respective  interests  to  the 
devisee  or  legatee  whose  devise  or  legacy  has  been  taken 
therefor,  and  the  county  court,  when  distribution  is  made, 
must,  by  decree  for  that  purpose,  settle  the  amount  of  the 
several  liabilities,  and  decree  the  amount  each  person  shall 
contribute,  and  reserve  the  same  from  their  distri.butive 
shares,  respectively,  for  the  purpose  of  paying  such  con- 
tribution.^* 

Sec.  250.  Decedent's  interest  in  a  contract  for  the  purchase 
of  land  may  be  sold. 
If  a  decedent,  at  the  time  of  his  death,  was  possessed  of  a 
contract  for  the  purchase  of  land,  his  interests  in  such  land 
and  under  such  contracts,  may  be  sold  on  the  application 
of  his  executor,  or  administrator,  in  the  same  manner  as 
if  he  had  died  seized  of  such  land,  and  the  same  proceed- 
ings may  be  had  for  that  purpose  as  are  prescribed  in  this 
chapter  for  the  sale  of  lands  of  which  he  died  seized,  except 
as  hereinafter  provided.^^ 

Sec.  251.  Such  sale  to  be  subject  to  payments  falling  due. 
The  sale  must  be  made  subject  to  all  payments  that  may 
hereafter  become  due  on  such  contracts  and  if  there  are 
any  such,  the  sale  must  not  be  confirmed  by  the  county 
court  until  the  purchasers  execute  a  bond  to  the  executor, 
or  administrator,  for  the  benefit  and  indemnity  of  himself, 
and  of  the  persons  entitled  to  the  interest  of  the  decedent 
in  the  lands  so  contracted  for,  in  double  the  whole  amount 


34  Snyder,    5,334;    Wilson,    1,678;  35  Snyder,    5,335;    Wilson,    1,679; 

Dakotca    Code,    5,847     (1887);    Call-       Dakota  Code,  5,848   (1887). 
fornia,   1,654,  identical. 


211  SALE   OF    RELIL   ESTATE   BY   AK   EXECUTOR.         §§  252-254 

of  payments  thereafter  to  become  due  on  such  contract,  with 
such  sureties  as  the  county  Judge  may  approve.^® 

Sec.  252.    The  purchaser's  bond  and  its  condition. 

The  bond  must  be  conditioned  that  the  purchaser  will 
make  all  payments  for  such  land  that  become  due  after  the 
date  of  the  sale,  and  will  fully  indemnify  the  executor  or 
administrator,  and  the  persons  so  entitled,  against  all  de- 
mands, costs,  charges  and  expenses  by  reason  of  any  cov- 
enant or  agreement  contained  in  such  contract.^^ 

Sec.  253.    The  confirmation  of  such  sale. 

Upon  the  confirmation  of  the  sale,  the  executor  or  admin- 
istrator, must  execute  to  the  purchaser  an  assignment  of  the 
contract,  which  vests  in  the  purchaser,  his  heirs  and  assigns, 
all  the  right,  title,  and  interest  of  the  estate,  or  of  the 
persons  entitled  to  the  interest  of  the  decedent,  in  the  lands 
sold  at  the  time  of  the  sale,  and  the  purchaser  has  the  same 
rights  and  remedies  against  the  vendor  of  such  lands  as  the 
decedent  would  have  had  if  he  were  living.^^ 

Sec.  254.  Real  estate  may  be  sold  by  an  executor  or  admin- 
istrator subject  to  mortgage  or  other  lien. 
Wlien  any  sale  is  made  by  an  executor,  or  administrator, 
pursuant  to  the  provisions  of  this  article,  of  lands  subject 
to  mortgage  or  other  lien,  which  is  a  valid  claim  against  the 
estate  of  the  decedent,  and  has  been  presented  and  allowed, 
the  purchase  money  must  be  applied,  after  paying  necessary 
expenses  of  the  sale,  first,  to  the  payment  and  satisfaction 
of  the  mortgage  or  lien,  and  the  residue,  if  any,  in  due 
course  of  administration.  The  application  of  the  purchase 
money  to  the  satisfaction  of  the  mortgage  or  lien,  must  be 


36  Snyder,    5,336;    Wilson,    1,680;  ss  Snyder,    5.338;    Wilson,    1,682; 
Dakota   Code,   5,849    (1S87).                    Dakota  Code,  5,851    (1S87). 

37  Snyder,    5,337;    Wilson,    1,681; 
Dakota  Code,  5,850   (1887). 


§§255,256  merwine's  trial  of  title  to  land.  212 

made  without  delay;  and  the  land  is  subject  to  such  mort- 
gage or  lien  until  the  purchase  money  has  been  actually  so 
applied.  No  claim  against  any  estate  which  has  been  pre- 
sented and  allowed  is  affected  by  the  statute  of  limitations, 
pending  the  proceedings  for  the  settlement  of  the  estate. 
The  purchase  money,  or  so  much  thereof  as  may  be  sufficient 
to  pay  such  mortgage  or  lien,  with  interest  and  any  lawful 
costs  and  charges  thereon,  must  be  paid  into  the  county 
court  to  be  received  by  the  judge  thereof,  whereupon  the 
mortgage  or  lien  upon  the  land  must  cease,  and  the  pur- 
chase money  must  be  paid  over  by  the  judge  without  delay, 
in  payment  of  the  expenses  of  the  sale  and  in  satisfaction 
of  the  debt,  to  secure  which  the  mortgage  or  other  lien  was 
taken,  and  the  surplus,  if  any,  at  once  returned  to  the 
executor  or  administrator,  unless,  for  good  cause  shown, 
after  notice  to  the  executor  or  administrator,  the  judge 
otherwise  directs.^^ 

Sec.  255.    The  mortgagee  may  be  a  purchaser. 

At  any  sale  under  order  of  the  county  court,  of  lands  upon 
which  there  is  a  mortgage  or  lien,  the  holder  thereof  may 
become  the  purchaser,  and  his  receipt  for  the  amount  due 
him  from  the  proceeds  of  the  sale  is  a  payment  pro  tanto; 
if  the  amount  for  which  he  purchased  the  property  is  insuffi- 
cient to  defray  the  expenses  and  discharge  his  mortgage  or 
lien,  he  must  pay  to  the  judge  an  amount  sufficient  to  pay 
such  expenses.*^ 

Sec.  256.    Neglect  or  misconduct  on  the  part  of  executor  or 
administrator  may  cause  liability  on  his  bond. 

If  there  is  any  neglect  or  misconduct  in  the  proceedings 
of  the  executor,  or  administrator,  in  relation  to  any  sale 
by  which  any  person  interested  in  the  estate  suffers  damage, 

39  Snyder,    5,330;    Wilson,    1,683:  4o  Snyder,    5,340;    Wilson,    1,684; 

Dakota    Code,    5,852    (1887);    Cali-       Dakota    Code,     5,853   (1887);   Call- 
fornia,   1,569,   similar.  fornia,   1,570,   similar. 


213        SALE  OF  REAL  ESTATE  BY  AN  EXECUTOR.    §§  257-259 

the  party  aggrieved  may  recover  the  same  in  an  action  upon 
the  bond  of  the  executor  or  administrator,  or  otherwise." 

Sec.   257.    Fraudulent  sale  by  administrator   or  executor- 
Liability  in  double  the  value  of  the  property. 

Any  executor,  or  administrator,  who  fraudulently  sells 
any  real  estate  of  a  decedent,  contrary  to  or  otherwise  than 
under  the  provisions  of  this  chapter,  is  liable  in  double  the 
value  of  the  land  sold,  as  liquidated  damages,  to  be  recov- 
ered in  an  action  by  the  person  having  an  estate  of  inherit- 
ance therein.*- 

Sec.  258.    The  limitation  as  to  the  action  to  recover  land  sold 
by  an  executor  or  administrator. 

No  action  for  the  recovery  of  any  estate  sold  by  an  ex- 
ecutor or  administrator  under  the  provisions  of  this  article, 
may  be  maintained  by  any  heir,  or  other  person  claiming 
under  a  decedent,  unless  it  be  commenced  within  three  years 
next  after  the  sale.  An  action  to  set  aside  a  sale  may  be 
instituted  and  maintained  at  any  time  within  three  years 
from  the  discovery  of  the  fraud,  or  other  grounds,  upon 
which  the  action  is  based.*^ 


Sec.  259.    Limitation  not  applicable  to  minors,  when. 

The  preceding  section  shall  not  apply  to  minors  or  others 
under  any  legal  disability,  to  sue  at  the  time  when  the  right 
of  action  first  accrues;  but  all  such  persons  may  commence 
an  action  at  any  time  within  three  years  after  the  removal 
of  the  disability." 

41  Snyder,  5,341;  Wilson,  1,685;  43  Snyder,  5,343;  Wilson,  1,687; 
Dakota  Code,  5,854  (1887);  Call-  Dakota  Code,  5,856  (1887);  Cali- 
fornia,  1,571,   identical.  ^ornia,   1,573.   «in;ilar 

42  Snyder,  5,342;  Wilson,  1,686;  4*  Snyder,  5,344;  Wilson,  1,688; 
Dakota  Code,   5,855    (1887).  Dakota  Code,   5,857    (1887). 


§§  260-262         merwine's  trial  of  title  to  land.  214 

Sec.  260.     The  sale  by  an  executor  or  administrator  must  be 
returned  at  the  next  term  of  the  county  court — 
The  return  of  sale  to  be  verified. 
When  a   sale  lias  been  made   by   an   executor  or  adminis- 
trator,   of   any    property    of    the    estate,    real    or   personal,    he 
must  return  to  the  county  court,  at  its  next  term  thereafter, 
an  account  of  sales,  verified  by  his  affidavit.     If  he  neglect 
to  make  such  return,  he  may  be  punished  by  attachment,  or 
his  letters  may  be  revoked,  one  day's  notice  having  been  first 
given  him  to  appear  and  show  cause  why  such  attachment 
should  not  issue  or  such  revocation  should  not  be  made.*^ 

Sec.  261.     An  executor  or  administrator  may  not  purchase  at 
his  sale. 

No  executor  or  administrator,  must,  directly  or  indirectly, 
purchase  any  property  of  the  estate  he  represents,  nor  must 
he  be  interested  in  any  sale.*^ 

Sec.  262.  Property  fraudulently  conveyed  by  a  decedent  may 
be  recovered  and  sold  by  the  executor  or  admin- 
istrator, when. 
When  there  is  a  deficiency  of  assets  in  the  hands  of  an 
executor  or  administrator,  and  when  the  decedent  in  his 
lifetime,  has  convej^ed  any  real  estate,  or  any  rights  or  inter- 
ests therein,  with  intent  to  defraud  his  creditors,  or  to  avoid 
any  right,  debt  or  duty  of  any  person,  or  has  so  conveyed 
such  estate  that  by  law  the  deeds  or  conveyances  are  void  as 
against  creditors,  the  executor  or  administrator  must  com- 
mence and  prosecute  to  final  judgment,  any  proper  action 
for  the  recovery  of  the  same ;  and  may  recover  for  the  benefit 
of  the  creditors  all  of  such  real  estate  so  fraudulently  con- 
veyed ;  and  may  also  for  the  benefit  of  the  creditors,  sue 
and  recover  all  goods,  chattels,  rights  or  credits  which  have 

45  Snyder,    5,34."5;    Wilson,    1,689;  46  Snyder,    5,346;    Wilson,    i,690; 

Dakota  Code,  5,858   (1887).  Dakota    Code,    5,859    (1887);    Cali- 

fornia,  1,576,  identical. 


215        SALE  OF  REAL  ESTATE  BY  AN  EXECUTOR.    §§  263-265 

been  so  conveyed  by  the  decedent  in  his  lifetime,  whatever 
may  have  been  the  manner  of  such  fraudulent  conveyances.*'^ 

Sec.  263.  Executor  or  administrator  not  required  to  sue 
unless  upon  application  of  creditors. 
No  executor  or  administrator  is  bound  to  sue  for  such 
estate  as  mentioned  in  the  preceding  section,  for  the  benefit 
of  the  creditors,  unless  upon  application  of  the  creditors,  who 
must  pay  such  part  of  the  costs  and  expenses  of  the  suit,  or 
give  such  security  therefor,  to  the  executor  or  administrator, 
as  the  judge  shall  direct."*^ 

Sec.  264.    Real  estate  so  recovered  may  be  sold,  how. 

Ail  real  estate  so  recovered  must  be  sold  for  the  payment 
of  debts  in  the  same  manner  as  if  the  decedent  had  died 
seized  thereof,  upon  obtaining  an  order  therefor  from  the 
county  court.  And  the  proceeds  of  all  goods,  chattels,  rights 
and  credits  so  recovered  must  be  appropriated  in  the  pay- 
ment of  the  del)ts  of  the  decedent  in  the  same  manner  as 
other  property  in  the  hands  of  the  executor  or  administrator.*** 

Sec.   265.     Land  sold  by  executor,   administrator,   guardian, 

sheriff  or  commissioner  of  court  and  afterward 

recovered,  possession  not  given  until  purchaser 

has  been  refunded  purchase  money  with  interest. 

Whenever   any   lands   sold   by   an    executor,    administrator, 

guardian,    sheriff,    or    commissioner    of    court,    is    afterward 

recovered    in    the    proper    action    by    any    person    originally 

liable   or  in  whose  hands   the  land  would  be  liable   to  pay 

the    demand    or   judgment    for   which,    or    for    whose    benefit 

the  land  was  sold,  or  anyone  claiming  under  such  person,  the 

47  Pnyder,    5,356;    Wilson.    1,699;  ^s  Snyder,    5,357;    Wilson,    1,700; 

Dakota    Code,    5,868     (1887);     Call-       Dakota    Code,    5,969     (1887);    Cali- 
fornia,  1,589,   identical.  fornia,    1,590,    identical. 

49  Snyder,    5,370;    Wilson,    1,701; 
Dakota  Code,  5,870   (1887). 


§§266-268  merwine's  trial  of  title  to  land.  216 

plaintiff  shall  not  be  entitled  to  tlie  possession  of  the  lands 
until  he  has  refunded  the  purchase  money  with  interest, 
deducting  therefrom  the  value  of  the  use,  rents  and  profits, 
and  injury  done  by  waste  and  cultivation,  to  be  assessed 
under  the  provisions  of  this  article.^" 

Sec.  266.    How  publication  made. 

When  any  publication  is  ordered,  such  publication  must 
be  made  daily  or  otherwise  as  often  during  the  prescribed 
period  as  the  paper  is  regularly  issued,  unless  otherwise 
provided  in  this  chapter.  The  court  or  judge  may,  however, 
order  a  less  number  of  publications  during  the  period.^^ 

Sec.  267.    All  orders  must  be  entered  in  minute  form — Need 
not  recite  facts  showing  jurisdiction. 

Orders  and  decrees  made  by  the  county  court,  or  the 
judge  thereof,  need  not  recite  the  existence  of  facts,  or  the 
performance  of  acts  upon  which  the  jurisdiction  of  the  court 
or  judge  may  depend,  but  it  shall  only  be  necessary  that 
they  contain  the  matters  ordered  or  adjudged,  except  as 
otherwise  provided  in  this  chapter.  All  orders  and  decrees 
of  the  court  or  judge  must  be  entered  at  length  in  the 
minute  book  of  the  court,  and  upon  the  close  of  each  regu- 
lar or  special  term  the  judge  must  sign  the  same.^^ 

Sec.  268.     Decree  recorded  in  office  of  register  of  deeds — 
Notice  to  all  persons. 

When  it  is  provided  in  this  chapter  that  any  order  or 
decree  of  a  county  court  or  judge,  or  a  copy  thereof,  must 
be   recorded   in  the   office    of  the   county   register   of   deeds, 

50  Snyder,    6,134;    Wilson,    4,800:  52  Snyder,    5,438;    Wilson,    1,780; 
Kansas,     5,100      (1901),     identical.       Dakota    Code,    5,949    (1887);    Cali- 
fornia, 1,704,  similar. 

51  Snyder,  5,439;  Wilson,  1,781; 
Dakota  Code,  5,950  (1887);  Cali- 
fornia,  1,705,  identical. 


217  SAIJE    OF   REAL   ESTATE   BY    AN   EXECUTOR.         §§269,270 

from   the   time   of  filing  the   same   for  record,  notice  is  im- 
parted to  all  persons  of  the  contents  thereof.^^ 

Sec.  269.  When  description  of  real  estate  need  not  be  pub- 
lished. 
When  a  complete  description  of  the  real  property  of  an 
estate  sought  to  be  sold  has  been  given  and  published  in  a 
newspaper  as  required  in  the  order  to  show  cause  why  the 
sale  should  not  be  made,  such  description  need  not  be  pub- 
lished in  any  subsequent  notice  of  sale,  or  notice  of  a 
petition  for  the  confirmation  thereof.  It  is  sufficient  to 
refer  to  the  description  contained  in  the  publication  of  the 
first  notice,  as  being  proved  and  on  file  in  the  court. ^* 

Sec.  270.     Parties  to  the  action — How  designated. 

All  issues  of  fact  joined  in  the  county  court  must  be  tried 
by  said  court,  and  in  all  such  proceedings  the  party  affirming 
is  plaintiff  and  the  one  denying  or  avoiding  is  defendant. 
After  the  hearing,  the  court  shall  give  in  writing  the  findings 
of  fact  and  conclusions  of  law.  Judgments  thereon,  as  well 
as  for  costs,  may  be  entered  and  enforced  by  execution  or 
otherwise,  by  the  county  court,  as  in  civil  actions.  If  the 
issues  are  not  sufficiently  made  up  by  the  written  pleadings 
on  file  the  court,  on  due  notice  to  the  opposite  party  must 
settle  and  frame  the  issues  to  be  tried  and  upon  which  the 
court  may  render  judgment. ^^ 

53  Snyder,  5,440;  Wilson,  1,782:  55  Snyder,  5,446;  Wilson,  1,788; 
Dakota   Code,    5,951    (1887).                    Dakota  Code,  5,957    (1887). 

54  Snyder,  5,445;  Wilson,  1.787; 
Dakota  Code,  5,956  (1887);  Cali- 
fornia,  1,712    (Kerr),  identical. 


§  271  MEB wine's  trial  of  title  to  land.  218 

FORMS   FOR   PROCEEDING   BY   ADMINISTRATOR   TO 
SELL  REAL  ESTATE   OF   DECEDENT. 

Sec.  271.     The  petition — Ordinary  form. 

In  the  County  Court  of  County,  State  op 

Oklahoma. 
In  the  Matter  of  the  Estate 

of  ,  Deceased.  No.  . 


PETITION  TO  SELL  REAL  ESTATE. 

Comes   now  ,    as    the   administrator   of   the   estate   of 

,  deceased,  and  shows  to  the  court : 


That  the  amount  and  value  of  the  personal  property  that  has 

come  into  his  hands  as  assets  of  said  estate  is  $ ,  and  that 

the  same  has  all  been  disposed  of  by  sale,  by  order  of  court; 
and  no  personal  property  remains  in  my  hands  not  set  apart  or 
otherwise  disposed  of  by  order  of  said  court ;  that  the  debts  now 
outstanding  against  said  decedent,  as  far  as  the  same  can  be 

ascertained  and  estimated,  are  about  $ ;  that  there  was 

no  family  allowance ;  that  the  expenses  and  debts  and  charges 

of  administration  already  accrued  are  $ ,  and  an  estimate 

of  what  the  debts,  expenses  and  charges  of  administration  that 
will  or  may  accrue  during  administration  by  your  petitioner  is 

$ ;  that  the  real  property  of  which  said  decedent  died 

seized,  or  in  which  he  has  any  interest  and  the  condition  and 
value  thereof,  excepting  the  homestead,  are  as  follows:  (Here 
set  out  the  same,  specifically  describing  the  nature  and  kind  of 
the  property,  and  the  approximate  value  of  the  same.) 

That  the  names  of  the  legatees,  devisees  and  heirs  of  said  de- 
cedent and  their  places  of  residence  and  post-office  address 
respectively,  so  far  as  known  to  petitioner,  are  as  follows:  (Here 
set  them  out.) 

That  it  is  necessary  to  sell  the  whole  of  said  real  estate  or 
some  portion  thereof  for  the  purpose  of  paying  the  debts  of 
said  decedent  and  the  cost  of  administration. 


219  SALE   OF   REAL   ESTATE   BY   AN   EXECUTOR.  §  272 

Wherefore,  your  petitioner  prays  that  an  order  of  said  court 
be  made,  authorizing  him  to  sell  the  whole  or  so  much  and  such 
parts  of  the  real  estate  described  in  this  petition  as  the  court 
shall  deem  necessary  or  beneficial  at  private  sale. 


Petitioner. 

State  of  Oklahoma,  County,  ss. : 

,  petitioner  above  named,  being  duly  sworn,  says  that 

he  has  read  the  above  and  foregoing  petition,  and  he  knows  the 
contents  thereof,  and  that  the  allegations  thereof  are  true. 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


My  commission  expires .  Notary  Public. 

Sec.  272.     The  order  for  the  hearing. 

County  Court  of  County,  State  of  Oklahoma. 

In  the  Matter  of  the  Estate 

of ,  Deceased.  No.  


ORDER  FOR  HEARING  PETITION  TO  SELL 
REAL  ESTATE. 

Now,  on  this day  of ,  19 — ,  ,  as  adminis- 
trator of  said  estate,  having  first  filed  herein  his  petition  for 
the  sale  of  the  real  estate  described  in  said  petition,  for  reasons 
in  said  petition  stated. 

It  is  ordered  that  said  petition  be,  and  hereby  is,  set  for  hear- 
ing on  the day  of ,  19 — ,  at o'clock,  —  m., 

at  wiiich  time  all  persons  interested  in  said  estate  are  required 
to  appear  and  show  cause,  if  any  they  have,  why  an  order  should 
not  be  granted  for  th«  sale  of  so  much  of  the  real  estate  of  said 

,  deceased,  as  is  necessary  for  the  reasons  in  said  petition 

stated. 

It  is  further  ordered  that  copies  of  this  order  be  posted  in 
three  public  places  in  the  county,  one  of  which  shall  be  at  the 
courthouse  where  the  hearing  is  to  be  held,  and  a  copy  person- 


§  273  mebwine's  trial  of  title  to  land.  220 

ally  served  on  or  mailed  to  all  persons  interested  in  the  estate, 
any  general  guardian  of  a  minor  so  interested,  and  any  legatee 
or  devisee  or  heir  of  the  deceased,  postage  prepaid,  and  also  that 
a  copy  of  this  order  be  published  for  two  consecutive  weeks  in 
,  a  newspaper  of , County,  Oklahoma. 


[Seal.]  Judge  of  the  County  Court. 


Sec.  273.     The  notice  of  the  hearing  and  the  proof  of  posting 
the  same — Proof  of  mailing. 

In  the  County  Court  of  County,  State  of 

Oklahoma. 
In  the  Matter  of  the  Estate 

of ,  Deceased.  No.  . 


Now,  on  this  day  of  ,  19 — ,  ,  as  admin- 
istrator of  said  estate,  having  filed  herein  his  petition  for  the 
sale  of  the  real  estate  described  in  said  petition,  for  reasons  in 
said  petition  stated. 

It  is  ordered  that  said  petition  be,   and  hereby  is,   set  for 

hearing  on  the  day  of  ,  19 — ,  at  o'clock, 

—  m.,  at  which  time  all  persons  interested  in  said  estate  are 
required  to  appear  and  show  cause,  if  any  they  have,  why  an 
order  should  not  be  granted  for  the  sale  of  so  much  of  the  real 

estate  of  said  ,  deceased,  as  is  necessary  for  the  reasons 

in  said  petition  stated. 

It  is  further  ordered  that  copies  of  this  order  be  posted  in 
three  public  places  in  the  county,  one  of  which  shall  be  at  the 
courthouse  where  the  hearing  is  to  be  held,  and  a  copy  person- 
ally served  on  or  mailed  to  all  persons  interested  in  the  estate, 
any  general  guardian  of  a  minor  so  interested,  and  any  legatee 
or  devisee  or  heir  of  the  deceased,  postage  prepaid,  and  also  that 
a  copy  of  this  order  be  published  for  two  consecutive  weeks  in 
,  a  newspaper  of  ,  County,  Oklahoma. 


[Seal.]  Judge  of  the  County  Court. 


221  SALE   OF    REAL   ESTATE   BY   AN   EXECUTOR.  §  274 

State  of  Oklahoma, County,  ss. : 

,  being  first  duly  sworn,  says  that  on  the  day 

of ,  19 — ,  he  posted  true  copies  of  the  above  and  foregoing 

order  in  three  public  places  in  said  county,  as  follows,  to- wit: 

one  on  the  front  door  of  the  courthouse,  one  ,  and  one 

,  all  in , County,  Oklahoma. 

Sworn  to  before  me  and  subscribed  in  my  presence  this ■ 

day  of  ,  19 — .  , 


[Seal.]  Clerk  of  the  County  Court. 

State  of  Oklahoma, County,  ss. : 

I,  ,  of  lawful  age,  being  first  duly  sworn,  upon  oath, 

say  that  on  the day  of ,  19 — ,  I  personally  mailed 

a  copy  of  the  wdthin  notice  to  each  person  interested  in  the 
estate,  the  guardian  of  each  minor  so  interested,  and  all  legatees, 
devisees  and  heirs  of  said  decedent  at  their  last  known  place  of 
residence,  wdth  postage  thereon  prepaid,  by  depositing  the  same 

in  the  post  office  at , County,  Oklahoma,  properly 

addressed.  . 

Sworn  to  before  me  and  subscribed  in  my  presence  this • 

day  of ,  19 — .  , 


[Seal.]  Notary  Public. 

My  commission  expires . 

Sec.  274.     The    proof    of   publication    of   the    notice    of   the 
hearing  of  the  petition. 

State  of  Oklahoma,  County  of  Okmulgee,  ss. : 

,  of  lawful  age,  being  first  duly  sworn,  deposes  and  says 

that  he  is  the of ,  a  weekly  newspaper  of  general 

circulation,  printed  and  published  in  ,  County, 

Oklahoma,  which  said  newspaper  has  been  a  legal  publication 
^vith  a  bona  fide  subscription  list  and  of  general  circulation  in 

County,  Oklahoma,  for  fifty-two  consecutive  weeks  next 

preceding  the  date  of  the  first  publication  of  the  order  hereto 
attached. 

That  the  attached  order  for  hearing  petition  was  published 
once  each  week  for  two  successive  weeks  in  said  newspaper,  the 


§  275  MERWINE  'S   TRIAL   OF   TITLE    TO   LAND.  222 

first  publication  thereof  was  on  the day  of ,  19 — , 

and  the  last  publication  thereof  on  the  day  of  , 

19—.  ' 

Subscribed  and  sworn  to  before  me  this day  of , 

19—. 


[Seal.]  Notarij  Public. 

]My  commission  expires , 

Sec.  275.    The  decree  for  the  sale  of  real  estate. 

County  Court  of  County,  State  op  Oklahoma. 

In  the  Matter  of  the  Estate 

of  ,  Deceased.  No.  -. 

DECREE   OF  SALE   OF  REAL  ESTATE. 

Now,  on  this  day  of  ,  A.  D.  19—,  this  matter 

coming  on  for  hearing  upon  the  petition  of ,  as  adminis- 
trator, for  an  order  authorizing  the  sale  of  the  whole,  or  so 
much,  and  such  parts  of  the  real  estate  described  in  said  peti- 
tion, as  shall  be  found  by  the  court  necessary  or  beneficial. 

And  it  appearing  to  the  court,  upon  satisfactory  proof,  that 
said  order  for  the  hearing  of  said  petition  has  been  posted  in 
three  public  places  in  said  county,  one  of  which  was  at  the 
courthouse  door  where  the  hearing  was  had;  that  a  copy  of  said 
order  has  been  mailed  to  all  persons  interested  in  the  estate,  the 
general  guardian  of  each  minor  so  interested,  to  each  devisee, 
legatee  and  heir  of  the  deceased  ten  days  before  said  hearing, 
with  the  postage  thereon  prepaid,  and  that  a  copy  of  said  order 
was  published  for  two  consecutive  weeks  in  the  ,  a  news- 
paper, printed  and  published  in  said County,  Oklahoma, 

the  first  publication  being  fifteen  days  before  the  hearing,  and 
there  now  appearing  herein  said  petitioner  in  person  and  by  hi^ 

attorneys, ,  and  said  matter  being  submitted  to  the  court., 

and,  upon  due  examination  and  consideration  of  said  petition, 
and  no  one  appearing  to  oppose  it,  and,  after  a  full  hearing  upon 
the  same,  and  upon  due  consideration  of  the  proofs  offered  in 
said  matter,  the  court  finds  that  the  sale  of  the  real  estate  be- 
longing to  said  estate  mentioned  in  said  petition,  and  hereinafter 


223  SALE  OF  REAL  "^STATE  BY  AN  EXECUTOR.        §  276 

described,  is  necessary  for  the  purpose  of  paying  the  debts  of 
decedent  and  the  cost  of  administration,  and  is  for  the  best 
interest  of  all  concerned. 

It  is  Therefore  ordered,  adjudged  and  decreed  by  the  court 

that  the  said  ,  as  the  administrator  of  the  estate  of  said 

■ ,  deceased,  be,  and  he  is,  hereby  authorized  and  directed 

to  sell  in  one  parcel  or  in  separate  parcels  or  subdivisions,  as 
the  said  administrator  shall  judge  most  beneficial  to  said  estate, 
at  private  sale  to  the  highest  bidder,  the  following  described  real 
estate  on  the  following  terms,  to- wit :  (Here  describe  real  estate), 
for  cash  in  hand. 

It  is  further  ordered  that  notice  of  the  time  and  place  of  such 
sale  be  given  by  posting  of  notices  of  the  time  and  place  of  sale 
in  three  public  places  in County,  Oklahoma,  and  by  pub- 
lication for  two  successive  weeks  in  the  ,  published  at 

,  in County,  State  of  Oklahoma,  and  in  the , 

of ,  published  at , County,  Oklahoma. 

It  is  further  ordered  that  before  making  such  sale  said  admin- 
istrator execute  an  additional  bond  to  the  State  of  Oklahoma  in 
the  penal  sum  of  $ ,  conditioned  as  required  by  law. 


[Seal.]  Judge  of  the  Coimty  Court. 

Sec.  276.     Form  for  appointment  of  appraisers  and  for  ap- 
praisement of  lands  before  sale  at  private  sale. 

In  the  County  Court  op  County,  State  of 

Oklahoma. 
In  the  ]\latter  of  the  Estate 

of ,  Deceased.  No.  . 


ORDER  APPOINTING  APPRAISERS. 

Now,  on  this day  of ,  19—,  it  is  hereby  ordered 

that , and ,  disinterested  persons  and  house- 
holders of  County,  Oklahoma,  be,  and  they  are  hereby 

appointed  appraisers,  to  appraise  the  following  described  real 
estate  belonging  to  the  estate  of  ,  deceased,  located  in 


§  276  mebwine's  trial  op  title  to  land.  224 
County,    Oklahoma,   and   described   as   follows,    to-wit: 


(Here  describe  the  land  to  be  appraised),  and  are  hereby  directed 
to  view  and  appraise  said  real  estate,  and  make  return  of  said 
appraisement  as  provided  by  law. 


Judge  of  the  County  Court. 


OATH  OF  APPRAISERS. 

State  of  Oklahoma, County,  ss. : 

I  do  solemnly  swear  that  I  will  truly,  honestly  and  impartially 
appraise  the  real  estate  mentioned  and  described  in  the  order  of 
court  above  mentioned,  according  to  the  best  of  my  knowledge 
and  ability.     So  help  me  God. 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


[Seal.]  Clerk  of  the  County  Court. 


APPRAISEMENT  OF  REAL  ESTATE  BEFORE  SALE. 

In  the  Matter  of  the  Estate 

of ,  Deceased.  In  the  County  Court. 

We,  the  undersigned  appraisers  appointed  to  appraise  the  real 

estate  of  ,  deceased,  mentioned  and  described  herein,  do 

most  respectfully  certify  that,  having  first  taken  and  subscribed 
the  oath  prescribed  by  law,  we  do  make  the  following  appraise- 
ment of  said  lands  at  the  fair  cash  value,  that  is  to  say.  (Here 
describe  the  land),  at  (appraised  value), ,  at . 

Respectfully  submitted  this  day  of ,  19 — . 


Appraisers. 


225                       SALE   OP   REAL   ESTATE   BY   AN    EXECUTOR.  §  277 

Estate  of ,  Deceased. 

To  ,  ,  ,  appraisers,  Dr. 

To  compensation  for  services  in  appraising  the  above  described 
real  estate,  as  follows : 

days  at  $ ,  per  day  each.  $ . 

Necessary  expenses  and  disbursements  as  follows: 
$ . 


State  of  Oklahoma, County,  ss. : 

, and ,  the  appraisers  above  named,  being 

duly  sworn,  each  for  himself,  says  that  the  foregoing  bill  is  cor- 
rect and  just,  and  that  the  services  have  been  duly  rendered  and 
expenses  incurred  as  therein  set  forth. 


Subscribed  and  sworn  to  before  me,  this day  of 

19—. 


[Seal.]  Clerk  of  the  County  Court. 


Sec.  277.    The  report  of  sale  of  real  estate  by  administrator. 

In  the  County  Court  of  County,  State  of 

Oklahoma. 
In  the  Matter  of  the  Estate 

of ,  Deceased.  No.  . 


KETURN  OF  SALE  OF  REAL  ESTATE. 

Comes  now ,  administrator  of  the  estate  of ,  de- 
ceased, and  shows  to  the  court  that,  pursuant  to  the  decree  of 

the  court  entered  herein  on  the  day  of  ,  19 — , 

authorizing  him  as  such  administrator  to  sell  the  real   estate 

belonging  to  said  ,  deceased,  hereinafter  described.     He 

caused  public  notice  to  be  given  as  provided  by  law  and  said 


§  278  MERWINE  'S    TRIAL    OP    TITLE    TO   LAND.  226 

order  by  posting  notices  in  three  public  places  of  the  time  and 

place  of  sale  in  each  of and Counties,  Oklahoma, 

and  by  publication  of  same   for  two   successive   weeks  in   the 

,  published  at ,  in County,  Oklahoma,  and 

in  the ,  published  at ,  in County,  Oklahoma, 

that  he  would  sell  the  real  estate  described  herein,  at  private 

sale,  to  the  highest  bidder;  that  on  the  day  of  , 

19 — ,  he  sold  said  real  estate,  to-wit:  (Here  describe  it,  setting 
out  amount  received  for  each  parcel),  on  the  following  terms, 

cash  in  hand,  to ;  that  said was  the  highest  bidder 

therefor,  and  said  sum  of  $ ,  the  highest  and  best  sum  bid, 

and  that  said  sum  of  $ is  not  disproportionate  to  the 

value  of  said  property. 

Wherefore,  said  ,   administrator,  prays  the  court  to 

enter  its  order  setting  said  return  for  hearing,  and  that  upon 
said  hearing  being  had,  he  be  directed  to  execute  a  proper  con- 
veyance therefor  to  said  purchaser. 

Dated  this day  of ,  19 — . 


Administrator. 

State  of  Oklahoma, County,  ss. : 

,  being  duly  sworn  on  oath,  says  that  he  is  the  admin- 
istrator above  named;  that  he  has  read  the  above  and  foregoing 
return  and  knows  the  contents  thereof,  and  that  the  statements 
therein  contained  are  true. 


Subscribed  and  sworn  to  before  me,  this day  of 

19—.  


[Seal.]  Clerk  of  the  County  Court. 


Sec.  278.    The  notice  of  the  hearing  of  administrator's  return 
of  sale  of  real  estate. 

County  Court  op  County,  State  of  Oklahoma. 

In  the  Matter  of  the  Estate 

of ,  Deceased.  .  No.  . 


227  SALE   OP   REAL   ESTATE   BY   AN   EXECUTOR.  §  279 

NOTICE  OF  HEARING  RETURN  OF  SALE  OF 
REAL  ESTATE. 

Notice  is  hereby  given  that  ,  the  duly  appointed  and 

qualified  administrator  of  the  estate  of  ,  deceased,  has 

returned  and  presented  for  confirmation,  and  filed  in  said  court 
his  return  of  the  sale  of  the  following  described  real  estate  of 

said  ,  deceased,  to-wit:   (Here  describe  real  estate),  for 

the  sum  of  $ ,  and  that ,  the day  of , 

19 — ,  at  o'clock  in  the  noon  of  said  day  at  the 

county  courtroom  at ,  in  said  county  of ,  has  been 

duly  appointed  by  said  court  for  hearing  said  return,  at  which 
time  any  person  interested  in  said  estate  may  appear  and  file 
his  exceptions  in  writing  to  said  return  and  contest  the  same, 
and  are  hereby  referred  to  said  return  for  further  particulars. 

In  Testimony  Whereof,,  I  have  hereunto  set  my  hand  and 
afiixed  the  seal  of  said  court  this day  of ,  19 — . 


[Seal.]  Judge  of  the  County  Court. 

Sec.  279.     Order  for  hearing  of  the  return  of  sale  of  real 
estate  by  an  administrator. 

County  Court  op  County,  State  op  Oklahoma. 

In  the  Matter  of  the  Estate 

of ,  Deceased.  No.  . 


Now,  on  this  day  of  ,  19 — ,  ,  as  the  ad- 
ministrator of  the  estate  of  ,  deceased,  having  made  and 

filed  herein  a  return  of  proceedings  had  under  order  of  sale  of 

real   estate,   made   and   entered  herein   on   the  day   of 

,  19 — ,  and  a  hearing  on  said  return  being  asked  for  in 

said  return  upon  a  day  before  the  first  day  of  the  next  term 
after  the  sale  reported  in  said  return. 

It  is  ordered  that  said  return  be  and  is  hereby  set  for  hearing 

on  the day  of ,  19 — ,  at o'clock,  —  m.,  and 

that  notice  of  the  time  and  place  of  said  hearing  be  given  by 
posting  notices  in  three  of  the  most  public  places  in  this  county. 


§  280  merwine's  trial  of  title  to  land,  228 


Sec.  280.    The  notice  of  hearing  return  of  sale  of  real  estate 
by  an  administrator. 

County  Court  op County,  State  of  Oklahoma. 

In  the  Matter  of  the  Estate 

of .  Deceased.  No. . 


NOTICE  OF  HEARING  RETURN  OF   SALE  OF 
REAL    ESTATE. 

Notice  is  hereby  given  that  ,  the  duly  appointed  and 

qualified  administrator  of  the  estate  of  ,  deceased,  has 

returned  and  presented  for  confirmation,  and  filed  in  said  court 
his  return  of  tlie  sale  of  the  following  described  real  estate  of 

said  ,  deceased,  to-wit:    (Here  describe  real  estate),  for 

the  sum  of  $ ,  and  that ,  the day  of , 

19 — ,  at  o'clock,  in  the  noon  of  said  day  at  the 

county  courtroom  in ,  in  said  county  of ,  has  been 

duly  appointed  by  said  court  for  hearing  said  return,  at  which 
time  any  person  interested  in  said  estate  may  appear  and  file 
his  exceptions  in  writing  to  said  return  and  contest  the  same, 
and  are  hereby  referred  to  said  return  for  further  particulars. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and 
affixed  the  seal  of  said  court,  this day  of ,  19 — . 


[Seal.]  Judge  of  the  County  Court. 

State  of  Oklahoma, County,  ss. : 

I, ,  of  lawful  age,  being  duly  sworn,  on  oath,  say :  That 

on  the  day  of  ,  19 — ,  I  posted  correct  and  true 

copies  of  the  foregoing  notice  in  three  of  the  most  public  places 
in  said  county,   as  follows,  to-wit:    One  at  bulletin  board  in 

county  courtroom,  in ;  one  at ,  in ,  and  one 

at ,  in 


Subscribed  and  sworn  to  before  me,  this day  of 

19—.  


[Seal.]  Clerk  of  the  County  Court. 


229  SALE    OF   REAL   ESTATE   BY    AN    EXECUTOR.  §  281 

Sec.  281.     The  legal  notice  of  sale  of  real  estate  by  an  admin- 
istrator and  the  proof  of  posting  same. 

In  the  Matter  of  the  Estate 

of ,  Deceased.  No. . 


NOTICE  OF  SALE  OF  REAL  ESTATE— PRIVATE  SALE. 

Notice  is  hereby  given  in  pursuance  of  an  order  of  the  county 

court  of  the  county  of ,  State  of  Oklahoma,  made  on  the 

day  of  ,  19 — ,  the  undersigned  administrator  of 

the  estate  of  ,  deceased,  will  sell  at  private  sale  to  the 

highest  bidder,  subject  to  the  confirmation  of  said  court,  on  the 

day  of ,  19 — ,  at o'clock,  —  m.,  or  within 

six  months  thereafter,  at  the  county  courtroom,  in  the  city  of 

,  in County,  State  of  Oklahoma,  all  the  right,  title 

and  interest  of  the  said  ,  deceased,  in  and  to  the  follow- 
ing described  real  estate  in County  and County, 

State  of  Oklahoma,  to-wit:  (Here  describe  real  estate),  for  cash 
in  hand. 

Bids  for  the  purchase  thereof  must  be  in  writing  and  must  be 
filed  with  the  county  court  or  delivered  to  the  undersigned  at 
, County,  State  of  Oklahoma. 


As  Administrator  of  the  Estate  of ,  Deceased. 


Attorneys. 

State  of  Oklahoma,  County,  ss. : 

,  being  first  duly  sworn,  says  that  on  the  day 

of ,  19 — ,  he  posted  true  copies  of  the  within  and  foregoing 

notice  in  three  public  places  in  said  county  of ,  and  State 

of  Oklahoma,  to-wit :  one  at  the  courthouse  door  in ;  one 

at  ;  one  at  ,  all  being  in ,  County, 

Oklahoma. 


Subscribed  and  sworn  to  before  me,  this day  of 

19—. 


Clerk  of  County  Court. 


§  282  merwine's  trial  of  title  to  land.  230 

NOTICE  OF  SALE  OF  REAL  ESTATE  BY  ADMINISTRA- 
TOR—PUBLIC SALE. 

In  the  Matter  of  the  Estate 

of ,  Deceased.  No. . 


Notice  is  hereby  given  in  pursuance  of  an  order  of  the  county 

court  of County,  State  of  Oklahoma,  made  on  the 

day  of ,  19 — ,  the  undersigned  administrator  of  the  estate 

of  ,  deceased,  will  sell  at  public  auction  to  the  highest 

bidder,   subject  to   confirmation  by  said  court   on  the 

day  of  ,  19 — ,  at  o'clock,  —  m.,  at  front 

door  of  the  courthouse  in , County,  State  of  Okla- 
homa, all  the  right,  title  and  interest  of  said  ,  deceased, 

in  and  to  the  following  described  real  estate  in County, 

State  of  Oklahoma,  to-wit :  (Here  describe  the  real  estate),  said 
real  estate  will  be  sold  on  the  following  terms  and  conditions, 
to-wit:  . 


As  Administrator  of  the  Estate  of  ,  Deceased. 

Sec.  282.     The  notice  of  publication  and  the  proof  of  sale — 
Notice  of  the  sale  of  real  estate. 

NOTICE  OF  THE  SALE  OF  REAL  ESTATE. 

In  the  Matter  of  the  Estate 

of ,  Deceased.  No. . 


Notice  is  hereby  given  in  pursuance  of  an  order  of  the  county 

court  of County,  State  of  Oklahoma,  made  on  the 

day  of ,  19 — ,  the  undersigned  administrator  of  the  estate 

of ,  deceased,  will  sell  at  private  sale  to  the  highest  bid- 
der, subject  to  the  confirmation  of  the  court,  on  ,  the 

day  of  ,  19 — ,  at  o'clock,  —  m.,  at  the 

county  courtroom  in  the  city  of ,  in County,  State 

of  Oklahoma,  all  the  right,  title  and  interest  of  the  said , 

deceased,  in  and  to  the  following  described  real  estate  in  

County  and County,  State  of  Oklahoma,  to  -wit:  (Here 

describe  real  estate),  for  cash  in  hand. 


231  SALE   OF    REAL   ESTATE   BY    x\.N   EXECUTOR.  §  283 

Bids  for  the  purchase  thereof  must  be  in  writing  and  must  be 
filed  with  the  county  court,  or  delivered  to  the  undersigned  at 
County,  Oklahoma. 


Administrator. 


Attorneys. 


FORM  FOR  THE  PROOF  OF  PUBLICATION. 

State  of  Oklahoma,  County  of  Okmulgee,  ss. : 

,  of  lawful  age,  being  duly  sworn  according  to  law,  states 

that  he  is  the of ,  a  weekly  newspaper  published 

at  ,  County,  Oklalioma,  having  general  cir- 
culation in  said  county,  and  which  newspaper  has  been  continu- 
ously and  uninterruptedly  published  in  said  county  during  the 
period  of  fifty-two  consecutive  wrecks  prior  to  the  first  publica- 
tion of  this  notice  of  sale,  and  that  the  notice  of  sale  of  real 
estate,  a  copy  of  which  is  hereto  attached,  was  duly  printed  and 

published  in  the  regular  issues  of  said  newspaper  for  

consecutive  weeks,  the  first  insertion  being  on  the  day 

of ,  19 — ,  and  the  last  insertion  being  on  the day 

of ,  19—. 


Printer's  fees,  $- 


Subscribed  and  sworn  to  be  fore  me,  this day  of 

19—.  


[Se^ul,.]  Notary  Public. 

My  commission  expires  . 

Sec.  283.    The  appraisal  before  private  sale  of  land  by  an 
administrator. 

In  THE  County  Court  of  County,  State  op 

Oklahoma. 
In  the  Matter  of  the  Estate 

of ,  Deceased.  No. •. 


§§284,285  merwine's  trial  of  title  to  land.  232 

APPRAISAL  BEFORE  SALE  OF  LANDS  AT 
PRIVATE  SALE. 

We,  the  undersigned  appraisers  appointed  to  appraise  the  real 

estate  of  ,  deceased,  mentioned  and  described  herein,  do 

most  respectfully  certify  that,  having  first  taken  and  subscribed 
the  oath  required  by  law,  we  do  make  the  following  appraisal 
of  said  lands  at  the  fair  cash  value;  that  is  to  say:  (Description 

of  lands)  ;   (Appraised  value),  .     (Here  describe 

lands  and  give  value.) 

Respectfully  submitted,  this  day  of ,  19 — . 


Appraisers. 


Sec.  284.     The  bid  in  vmting. 


In  the  County  Court  of  County,  State  of 

Oklahoma. 
In  the  Matter  of  the  Estate 

of ,  Deceased.  No. . 

,  Administrator. 

To  the  Honorable  ,  County  Judge: 

I  herewith  bid  the  sum  of  $ ,  for  the  property  herein- 
after described,  which  said  property  is  being  sold  by ,  as 

administrator  of  the  estate  of ,  deceased,  and  is  described 

as  follows,  to-wit:   (Here  describe  real  estate),  all  in  the  town 

of   ,    Oklahoma,    according    to    the    government    survey 

thereof.  . 

Sec.  285.  The  order  approving  and  confirming  sale  of  real 
estate  by  an  administrator — Order  for  deed  to 
purchaser. 

In  the  County  Court  of  County,  State  of 

Oklahoma. 
In  the  Matter  of  the  Estate 

of ,  Deceased.  »  No. . 


233  SALE   OF    REAL   ESTATE   BY    AN    EXECUTOR.  §  285 

ORDER  CONFIRMING  SALE  OF  REAL  ESTATE. 

Now,  on  this day  of ,  19—,  there  coming  on  for 

hearing  the  return  of  sale,  made  by ,  as  the  administrator 

of  the  estate  of  ,  deceased,  and  said  ,  administra- 
tor, appearing  in  person  and  by  his  attorneys,  in  support  of 
the  confirmation  of  sale,  and  no  one  appearing  against  said 
confirmation,  and  the  court  ha\dng  examined  said  return  and 
having  heard  and  considered  the  evidence  of  witnesses  offered  in 
support  of  said  return,  and  being  fully  advised  in  the  premises, 
finds: 

That,  in  pursuance  of  said  orders  of  sale,  said ,  admin- 
istrator, on  the day  of ,  19—,  sold  the  portion  of 

said  real  estate  of  said  estate,  described  as  follows,  to-\^^t :  (Here 
describe  it),  all  in  the  town  of  ,  County,  Okla- 
homa,  at   private   sale,   to  ,   upon   the   following   terms, 

to-wit:  for  the  sum  of  $ ,   payable   cash  in  hand,  upon 

confirmation  of  sale. 

That  an  offer  of  more  than  ten  per  cent,  more  in  amount  than 
that  named   in  the  return  of  sale  was  made  to  the  court  in 

writing  by  a  responsible  person  as  follows:  ,  who  offered 

in  writing  the  sum  of  $ ,  payable  cash  in  hand  on  confirma- 
tion of  sale. 

That  said  sale  was  made  after  due  notice  as  prescribed  by  said 

order  of  sale ;  that  said  purchaser, ,  was  the  highest  bidder 

therefor,  and  said  sum  of  $ ,  the  highest  and  best  sum 

bid;  that  the  sale  was  legally  made  and  fairly  conducted;  that 

said  sum  of  $ is  not  disproportionate  to  the  value  of  the 

property  sold,  and  that  a  sum,  exceeding  said  bid  at  least  ten 
per  cent.,  exclusive  of  the  expenses  of  a  new  sale,  can  not  be 
obtained,  and  that  said  administrator  in  all  things  proceeded 
and  conducted  and  managed  such  sale  as  required  by  the  statute 
in  such  case  made  and  provided,  and  as  by  said  order  of  sale 
required  and  directed. 

It  is  Therefore  ordered,  adjudged  and  decreed  by  the  court, 

that  said  sale  to ,  be,  and  the  same  is  hereby  confirmed  and 

declared  valid,  and  the  said  administrator  is  directed  to  execute 


§  286  MER WINERS   TRIAL    OF  TITLE   TO   LAISTD.  234 

to.  said  purchaser, ,  proper  and  legal  conveyances  for  said 

real  estate.  , 

[Seal.]  Judge  of  the  County  Court. 


Sec.  286.    The  form  for  a  deed  to  purchaser  of  real  estate  at 
an  administrator's  sale  thereof.* 

ADMINISTRATOR'S    DEED. 

This   Indenture,  made   the  day   of  ,   A.   D. 

19 — ,  by  and  between ,  the  duly  appointed,  qualified  and 

acting  administrator  of  the  estate  of  ,  deceased,  party  of 

the  first  part,  and ,  party  of  the  second  part. 

WITNESSETH,  that  whercas,  on  the day  of ,  A.  D. 

19 — ,  the  county  court  within  and  for  the  county  of  , 

State  of  Oklahoma,  made  an  order  of  sale,  authorizing  the  said 
party  of  the  first  part  to  sell  certain  real  estate  of  the  said 

,    deceased,   situate   in  the   county   of  ,    State   of 

Oklahoma,  described  in  said  order  of  sale,  and  which  said  order 
of  sale  is  now  on  file  and  of  record  in  said  county  court. 

And,  Whereas,  under  and  by  virtue  of  said  order  of  sale, 
and  pursuant  to  legal  notice  given  thereof,  the  said  party  of  the 

first  part,  on  the  day  of  ,  A.  D.  19 — ,  sold  the 

hereinafter  described  real  estate,  specified  and  described  in  said 

order  of  sale,  as  aforesaid,  to ,  subject  to  confirmation  by 

said  court,  for  the  sum  of  $ ,  he  being  the  highest  and 

best  bidder  therefor,  and  that  being  the  highest  and  best  sum 
bid. 

And,  Whereas,  the  said  county  court,  upon  the  due  and  legal 
return  of  the  proceedings  under  said  order  of  sale,  made  by  the 
said  party  of  the  first  part  after  making  said  sale,  did,  on  the 
day  of ,  19 — ,  make  an  order  confirming  said  sale, 

*  See     Sections     to     ,  used    by    the    administrator's    sale. 

subject,    Sale    of     Real     Estate    by  Forms    for    sales    by    guardian    at 

G-uardian.    The  action  of  a  guardian  public  auction  will  be  found  there; 

is  by   statute  made   the   same   as   a  also   other   special   forms   that   may 

sale     by     an     administrator.      The  be  used  by  an  administrator  in  sale 

forms    by    guardian's    sale    may    be  of  the  real*  estate  of  a  decedent. 


235  SALE    OF    REAL    ESTATE    BY    AN    EXECUTOR.  §  286 

and  directing  conveyances  to  be  executed  to  the  said  party  of 
the  second  part,  a  certified  copy  of  which  order  of  confirmation 

was  recorded  in  the  office  of  the  register  of  deeds  of  said 

County,  ■ttdthin  which  the  said  land  is  situated,  on  the  

day  of  ,  A.  D.  19 — ,  in  Book  ,  page  ,  and 

which  said  order  of  confirmation  now  on  file  and  of  record  in 
said  county  court  and  which  said  record  thereof  in  said  register 
of  deeds'  office  are  hereby  referred  to  and  made  a  part  of  this 
indenture. 

Now,  Therefore,  the  said ,  as  the  administrator  of  the 

estate  of  said  ,  deceased,  as  aforesaid,  the  party  of  the 

first  part,  pursuant  to  the  order  last  aforesaid,  of  the  said  county 

court,  and  for  and  in  consideration  of  the  said  sum  of  $ , 

to  him  in  hand  paid  by  said  party  of  the  second  part,  the  receipt 
whereof  is  hereby  acknowledged,  has  granted,  bargained,  sold 
and  conveyed,  and  by  these  presents,  does  grant,  bargain,  sell 
and  convey  unto  the  said  party  of  the  second  part,  his  heirs  and 
assigns  forever,  all  the  right,  title,  interest  and  estate  of  the  said 

,  deceased,  at  the  time  of  his  death,  and  also  all  the  right, 

title  and  interest  that  the  said  estate,  by  operation  of  law  or 
otherwise,  may  have  acquired,  other  than,  or  in  addition  to,  that 
of  said  decedent,  at  the  time  of  his  death,  in  and  to  all  the 
certain  lots,  pieces,  or  parcels  of  land,  situate,  lying  and  being 

in  said  County,  State  of  Oklahoma,  and  bounded  and 

particularly  described  as  follows,  to-vvdt:  (Here  specifically  de- 
scribe real  estate),  together  with  the  tenements,  hereditaments 
and  appurtenances  thereunto  belonging  or  in  anywise  apper- 
taining. 

To  Ha\t:  and  to  Hold,  all  and  singular,  the  above  described 
premises,  unto  the  said  party  of  the  second  part,  his  heirs  and 
assigns,  forever. 

In  Witness  "Whereof,  the  said  party  of  the  first  part,  as  such 
administrator  as  aforesaid,  has  hereunto  set  his  hand  the  day 
and  year  above  written. 


Administrator. 


§  286  MERWINE  'S   TRIAL   OF   TITLE   TO   LAND.  236 

State  of  Oklahoma,  County,  ss. : 

Be  it  remembered,  that  on  this  day  of  ,  19 — , 

before  me, ,  a  ,  in  and  for  said  county  and  State, 

personally  appeared  ,  as  the  administrator  of  the  estate 

of ,  deceased,  to  me  Imown  to  be  the  identical  person  who 

executed  the  within  and  foregoing  instrument,  and  acknowledged 
to  me  that  he  executed  the  same  in  the  capacity  therein  stated, 
as  his  free  and  voluntary  act  and  deed  for  the  uses  and  pur- 
poses therein  set  forth. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and 
affixed  my  seal  the  day  and  year  last  above  written. 


[Seal,]  Notary  Public. 

My  commission  expires . 


CHAPTER   VIII. 

THE  LAW  AND  PPoCCEDURE  BY  WHICH  REAL  ESTATE 
IS  SOLD   UNDER  ATTACHMENT  PROCEEDINGS. 


SECTION 

287.  Introductory      statement — The 

statute  must  be   strictly  fol- 
lowed. 

288.  An    auxiliary    remedy    allowed 

only  after  suit  is  brought. 

289.  When    the    action     is    deemed 

commenced. 

290.  The    affidavit    for    the    attach- 

ment— What  it  must  contain. 

291.  The  grounds  for  attachment. 

292.  When  the  defendant,  or  one  of 

several    defendants,    are   non- 
residents of  the  State. 

293.  Has   absconded   with   intent  to 

defraud  his  creditors. 

294.  When  the  debt  has  been  fraud- 

ulently     or      criminally      in- 
curred. 

295.  Fraudulent  disposition  of  prop- 

erty. 

296.  The    attachment    bond — Attor- 

ney's fee. 

297.  The    order    of    attachment,    its 

requirements    and    to    whom 
directed. 

298.  The   order   of  attachment  may 

be   issued    to    different   coun- 
ties. 

299.  When   returnable. 

300.  The   order    in   which    the   writ 

is  to  be  executed. 

301.  The    manner    of    the    execution 

of  the  order. 

302.  The  officer  may  leave  property 

in    possession    of    whom — Re- 
tention bond. 

303.  Different  attachments— The  in- 

ventory and  appraisement. 

304.  How     subsequent     attachments 

may  be  made. 

237 


SECTION 

305.  What  the  officer's  return  of  the 

order  must  show. 

306.  A    receiver    may   be    appointed 

to  take  charge  of  property — ■ 
His  bond. 

307.  The  receiver's  report. 

308.  Sheriff     to     act     as     receiver, 

when. 

309.  The      attachment      discharged, 

when — ^Bond. 

310.  The     defendant     may     execute 

bond  before  sheriff  or  clerk 
in  vacation. 

311.  Judgment  in  the   action — How 

satisfied. 

312.  Court  may  compel   delivery  of 

attached  property. 

313.  May   order    retaking    of    prop- 

erty. 

314.  Reference      may     be     ordered, 

when. 

315.  Death  of  defendant. 

316.  Defendant  may  move  for  addi- 

tional security,  when. 

317.  The  defendant  may  move  to  dis- 

charge attachment — ^Tlie  evi- 
dence in  the  case. 

318.  The    attachment    before    it    is 

due. 

319.  The    procedure    by    which    real 

estate  is  sold  under  a  writ  of 
attachment — The  form  for 
the  petition  in  such  case. 

320.  The   form   for   the   affidavit   in 

attachment. 

321.  The   form  for  tne  bond   in  at- 

tachment. 

322.  The   form  for  the  order  of  at- 

tachment issued  by  the  clerk 
to  the  sheriff. 


§287 


MERWINE  S   TRIAL   OF   TITLE   TO   LAND. 


238 


SECTION. 

323.  The  form  for  the  affidavit  for 

service  by  publication  upon 
a  nonresident  defendant  in 
attachment. 

324.  The  form  for  notice  by  publi- 

cation. 

325.  The  form  for  the  order  of  sale 

in  attachment  proceedings. 

326.  The  form  for  proof  of  publica- 

tion of  the  notice. 

327.  The  form  for  the  judgment  and 

order  of  sale  of  the  attached 
property. 

328.  The  form  for  the  order  of  sale 

issued  by  the  clerk  to  the 
sheriff  in  attachment  pro- 
ceedings. 


SECTION 

329.  The  form  for  the   legal  notice 

of    sale    of    real   estate   under 
attachment  proceedings. 

330.  The  form  for  proof  of  publica- 

tion  of   notice  of  sale. 

The  form  for  appointment  of 
appraisers  of  real  estate,  the 
oath  of  the  appraisers,  and 
appraisement — In  attachment. 

The  order  confirming  the  sale, 
ordering  distribution,  and  the 
execution  and  delivery  of  a 
deed  to  the  purchaser  at 
sheriff's  sale  of  property  at- 
tached. 

Form  for  sherift''s  deed  for  real 
estate  sold  under  attachment 
proceedings. 


331. 


332. 


333. 


Sec.  287.  Introductory  statement — The  statute  must  be 
strictly  followed. 
The  purpose  of  this  book  necessarily  makes  the  subject 
treated  in  this  chapter  quite  brief.  Only  so  much  of  the 
law  of  attachment  in  the  State  of  Oklahoma  will  be  dis- 
cussed as  is  necessary  to  disclose  the  essentials  requisite  in 
attachment  proceedings  in  order  to  give  good  title  to  real 
estate  bought  at  sheriffs'  sales  in  such  actions.  The  law  as 
to  the  seizure  of  real  and  personal  property  by  writ  of  at- 
tachment is  so  interwoven  that  much  of  the  law  as  to  the 
latter  must  be  given  with  the  former,  but  about  the  only 
difference  between  them  is  the  manner  of  disposition  of 
each  by  the  officers  and  agents  of  the  court.  The  subject  of 
the  seizure  of  real  estate  by  writ  of  attachment  is  governed 
and  controlled  by  legislative  enactment,  and  being  so  con- 
trolled, we  must  look  to  the  statutes  on  this  subject  for  the 
source  of  the  authority  of  the  court  and  its  officers  for  their 
actions  in  such  proceeding.^ 


1  Buckeye  Pipe  Line  Co.  v.  Fee, 
62  0.  S.  5'56.  Proceedings  in  at 
tachment  are  not,  it  is  true,  accord- 
ing to  the  course  of  the  common 
law.     They  are,  however,  under  our 


construction,  proceedings  in  rem  in- 
tended to  subject  the  property  of  a 
debtor  to  the  payment  of  his  debts. 
Lessee  v.  Loring,   7   0.  425. 


239  RELVL   ESTATE    UNDER    ATTACHMENT  §  288 

Being  purely  statutory,  the  practitioner  in  such  proceed- 
ings, must  pursue  the  directions  of  the  statutes,  as  the  court 
will  not  acquire  jurisdiction  to  seize  hold  of  real  estate  and 
sell  it  under  the  writ.  This  remedy  by  attachment  being 
contrary  to  the  course  of  the  common  law  cannot  be  extended 
beyond  the  strict  letter  of  the  statute  authorizing  it;  for  it 
has  always  been  the  policy  of  our  courts  to  require  the 
court  pursuing  an  extraordinary  remedy  authorized  by 
statute,   to  make   out  a  clear  case   of  judicial  interference.- 

Sec.   288.     An  auxiliary  remedy  allowed  only   after  suit  is 
brought. 

The  writ  of  attachment  is  an  auxiliary  remedy,  to  be 
issued  or  allowed  only  after  an  action  has  been  begun,  and 
it  has  been  said  of  it  that  it  is  in  the  nature  of  an  execution 
in  advance.  The  function  of  the  writ  is  to  seize  hold  of 
real  estate  in  advance  of  the  hearing  of  the  case,  to  hold 
it  in  court  until  a  final  judgment  is  had  in  the  court.  It 
follows  then,  as  a  matter  of  course,  that,  if  the  judgment 
of  the  court  is  against  the  claim  of  the  plaintiff,  the  whole 
proceedings  fail,  but  that  if  the  judgment  in  the  ease  is 
given  to  the  plaintiff,  on  the  issues  of  the  case,  then  so 
much  of  the  real  estate,  so  seized,  imder  the  writ,  is  sold 
as  will  be  necessary  to  satisfy  the  amount  of  the  judgment.^ 


2jaffrey  V.  Wolf,   1  Okla.  312,  33  man    v.    Beverstock,    8    C.    C.    474. 

Pac.  945;  Egan  v.  Lumsden,  2  Disn.  If  there  is  no  debt  there  can  be  no 

(Ohio),    168;    Taylor   v.   McDonald,  attachment.      Carnahan   v.    Gustine, 

4   0.    153;    Caldwell   v.   Bank,   2    0.  2  Okla.  399,  37  Pac.  594.     The  fact 

229 ;  Hoyman  v.  Beverstock,  8  C.  C.  that  the  action  is  equitable  will  not 

(Ohio),  477.     An  attachment  ia  an  defeat  the  attachment.     Hendrickson 

extreme   remedy   and   the   attaching  v.  Brown,  11  Okla.  41,  65  Pac.  935. 

creditor  must  direct  his  case  within  3  Pempe  v.  Ravens,  68  O.  S.  113; 

the   letter   of   the   law   to   get   "the  Siebert  v.   Sweitzer,   35   0.   S.   661; 

strong  arm  of  the  court  to  take  the  Carty    v.    Fenstermacher,    14    0.    S. 

property    of    the    debtor    from    his  457;  Ward  v.  Howard,  12  0.  S.  158. 
possession  before  judgment."     Hoy- 


§§289,290  merwine's  trial  of  title  to  land.  240 

Sec.  289.    When  the  action  is  deemed  commenced. 

In  an  action  where  the  order  of  attachment  was  issued 
on  the  filing  of  the  affidavit  and  the  giving  of  a  bond,  the 
order  was  issued  and  served  on  the  defendant,  and  there- 
after, on  the  same  day,  the  petition  was  filed,  and  on  such 
state  of  facts  the  court  held  that  the  attachment  had  been 
issued  without  authority  of  law,  and,  as  against  other  attach- 
ing lienholders,   gave  no  priority. 

The  statute  does  not  authorize  an  attachment  except  in 
an  action,  and  the  clerk  of  the  court  has  no  authority  to 
issue  an  order  of  attachment  until  the  action  is  brought  and 
the  relation  of  plaintiff  and  defendant  is  established  in  the 
case.* 

An  action  is  deemed  commenced  so  far  as  the  right  to 
consider  a  writ  of  attachment  is  concerned,  as  soon  as  a 
petition  is  filed  in  the  proper  court,  and  the  summons  is 
issued  thereon,  with  the  intent  to  have  the  same  served.^ 

Sec.  290.    The  affidavit  for  the  attachment — What  it  must 
contain. 

An  order  of  attachment  will  be  made  by  the  clerk  of  the 
court  in  which  the  action  is  brought,  in  any  case  mentioned 
in  the  statute  (Snyder,  5702;  Wilson,  4365),  when  there  is 
filed  in  his  office  an  affidavit  of  the  plaintiff,  his  agent  or 
attorney,  showing : 

1.  The  nature  of  the  plaintiff's  claim. 

2.  That  it  is  just. 

3.  The  amount  which  affiant  believes  plaintiff  should  re- 
cover; and 

4.  The  existence  of  some  one  of  the  grounds  for  attach- 
ment enumerated  in  the  statute  (Snyder,  5701;  Wilson, 
4365). « 

4Siebert  v.    Schweitzer,   35    0.   S.  Nebraska,    1.172    (1007),    identical; 

<361.  Ohio  Gen.  Code,  Sec.  11,820  (1910). 

5  Ck)fTman  v.  Brandhofer,  50  N.  W.  The  allegations  of  the  petition  and 
(Neb.)    6.  the    affidavit    for    attachment    must 

6  Snyder,  5,702;  Wilson,  4,366;  be  the  same  in  substance.  Carnahan 
Kansas,     4,625      (1901),     identical:  v.    Gustine,^  2    Okla.    399,    37    Pac. 


241  REAL/   ESTATE    UNDER   ATTACHMENT.  §  290 

The  affidavit  mentioned  in  the  preceding  paragraph  is  one 
of  the  prime  essentials  in  validating  the  attachment  pro- 
ceedings. Not  only  must  it  be  filed,  but  it  must  be  just 
what  the  statute  says  it  must  be.  It  must  also  set  forth, 
definitely  and  precisely,  one  or  more  of  the  grounds  of  the 
statute  authorizing  the  writ  of  attachment.  Indeed,  if  all 
the  other  proceedings  under  the  attachment  statute  are  reg- 
ular, and  the  real  estate  is  sold  by  order  of  court,  and  the 
purchaser  has  paid  the  full  value  for  it,  he  will  not  get  a 
good  title  to  the  land  if  this  affidavit  has  not  been  filed  in 
the  case,  or  having  been  filed,  it  fails  to  show  all  the  four 
requirements  of  the  statute  as  above  indicated.  In  such  a 
case,  a  court  of  last  resort,  in  a  jurisdiction  having  a  statute 
identical,  to  the  statute  of  this  State,  on  this  subject,  well 
said: 

"No  affidavit  was  filed,  and  unless  the  petition  must  be 
looked  to  to  supply  this  important  omission,  the  writ  was 
void,  and  no  jurisdiction  was  acquired  by  the  seizure  of  the 
land  under  it ;  and  if  no  valid  seizure  was  made,  no  service 
of  publication  could  be  made.  We  think  that  the  fact  that 
there  was  not  the  requisite  affidavit  to  authorize  the  issuing 
of  the  attachment,  renders  all  subsequent  proceedings  under 
it  void."^ 

594.     As  to  affidavit  for  attachment  27,   78  Pac.   388;    Coyler  v.   Xix,   7 

and  service  by  publication  being  suf-  Okla.    267,    54    Pac.    469;     Reister 

ficient,  see  Raymond  v.  Xix,  5  Okla.  v.  Laud,  14  Okla.  34,  76  Pac.   156; 

666,    49    Pac.     1,110.      An    affidavit  Tracr   v.    Gun,    29    Kan.    509;    Cas- 

in   the    language    of   the    statute   is  sity   v.    Fleak,    20    Kan.    54.      It    is 

sufficient.       Thwing     v.     Humphrey,  error     to     refuse     to    allow    amend- 

13  Okla.  646,  75  Pac.  1,127;  Thwing  ments.     Wells  v.  Danford,  28  Kan. 

V.   Winkler,    13   Okla.   643,    75   Pac.  487;  Swearinger  v.  Ilowser,  37  Kan. 

1,126;   Rayburn  v.  Bracket,  2  Kan.  126,  14  Pac.  436.     Plaintiff's  attor- 

227 ;  Hilton  v.  Ross,  2  X.  W.  ( Xeb. )  ney     of     record     cannot     take     the 

862;     Steele    v.    Dodd,     16    X.    W.  verification.      Toodle    v.    Smith.    34 

1,909;     Tessier     v.     Lockwood,     24  Kan.   27,  7  Pac.  577.     The  affidavit 

iN.    W.     (Xeb.)     934.      The    affidavit  may  be  aided  by  the  allegations  of 

may  be   amended.     Dunn  v.   Drum-  the    petition.      Hart    v.    Barnes,    40 

mond,    4    Okla.    461,    51    Pac.    655;  X.   W.    (Xeb.)    322.     Tlie   filing   of 

Dunn   V.    Clauch,    13    Okla.    577,    76  the   affidavit   is  jurisdictional. 
Pac.   143;    Same  v.   Same,   15   Okla.  7  Endel  v.  Leibrock,  33  0.  S.  267. 


§  291  merwine's  trial  of  title  to  land.  242 

The  grounds  for  the  attachment  may  be  set  forth  in  the 
affidavit  therefor,  in  the  language  of  the  statute,  without  a 
more  particular  statement  of  the  facts  to  be  alleged ;  ^  but 
where  the  affidavit  does  not  follow  the  precise  language  of 
the  statute,  it  will  be  sufficient  for  the  attachment  affidavit, 
if  it  contains  language  fully  equivalent,  or  clearly  shows  the 
grounds  specific  or  intended.^ 

Sec.  291.     The  grounds  for  attachment. 

The  plaintiff  in  a  civil  action  for  the  recovery  of  money, 
may,  at  or  after  the  commencement  thereof,  have  an  attach- 
ment against  the  property  of  the  defendant,  and  upon  the 
grounds  herein  stated : 

1.  When  the  defendant,  or  one  of  several  defendants,  is  a 
foreign  corporation,  or  nonresident  of  this  State;  (but  no 
order  of  attachment  shall  be  issued  on  the  ground,  or 
grounds,  in  this  clause  stated,  for  any  claim  other  than  a 
debt  or  demand  arising  upon  contract,  judgment  or  decree, 
unless  the  cause  of  action  arose  wholly  within  the  limits  of 
this  State,  which  fact  must  be  established  on  the  trial). 

2.  When  the  defendant,  or  one  of  several  defendants,  has 
absconded  with   the   intention   to   defraud  his   creditors ;   or, 

3.  Has  left  the  county  of  his  residence  to  avoid  the  service 
of   summons ;    or, 

4.  So  conceals  himself  that  summons  cannot  be  served 
upon  him ;  or, 

5.  Is  about  to  remove  his  property,  or  a  part  thereof,  out 
of  the  jurisdiction  of  the  court,  with  the  intent  to  defraud 
his  creditors ;  or, 

6.  Is  about  to  convert  his  property,  or  a  part  thereof,  into 
money  for  the  purpose  of  placing  it  beyond  the  reach  of  his 
creditors ;  or. 


3  Emmet  v.   Yeigh,    12   0.   S.  335.  believe   and    does    believe    the    facts 

9  Treaser  v.   Young,   31   0.    S.   57.  alleged   therein,      Campbell   v.   Hill, 

It  is   not  sufficient  for  the  affidavit  1    Kan.  54. 

to  state  that  affiant  has  reasons  to 


243  REAL   ESTATE   UNDER    ATTACHMENT.  §  292 

7.  Has  property  or  rights  in  action  which  he  conceals ;  or, 

8.  Has  assigned,  removed  or  disposed  of,  or  is  about  to 
dispose  of  his  property,  or  a  part  thereof,  with  the  intent  to 
defraud,  hinder  or  delay  his  creditors;  or, 

9.  Fraudulently  contracted  the  debt  or  fraudulently  in- 
curred the  liability  or  obligation  for  which  the  suit  is  about 
to  be,  or  has  been  brought ;  or, 

10.  Where  the  damages  for  which  the  action  is  brought 
are  for  injuries  arising  from  the  commission  of  some  felony 
or  misdemeanor,  or  the  seduction  of  any  female ;  or, 

11.  When  the  debtor  has  failed  to  pay  the  price  or  value 
of  any  article  or  thing  delivered,  which  by  contract,  he  was 
bound  to  pay  upon  delivery.^" 

Sec.  292.     When  the  defendant,  or  one  of  several  defendants, 
are  nonresidents  of  the  State. 

One  of  the  grounds  authorizing  the  writ  of  attachment  is 
when  the  defendant,  or  one  of  several  defendants,  is  a  non- 
resident of  this  State.  For  a  construction  of  the  term 
"resident,"  or  ''residence,"  as  used  in  this  statute,  we  cannot 
turn  to  the  definition  of  the  word  "residence"  as  used  with 
reference  to  the  qualifications  of  voters.  In  such  case,  the 
word  "residence"  is  used  synonymously  with  "domicile." 
When  the  word  "residence"  is  applied  to  the  attachment 
laws  of  this  State,  it  is  not  controvertible  with  "domicile." 
This  is  upon  the  theory  that  a  party's  residence  may  be  in 
one  place  and  his  domicile  in  another.  It  is  the  actual 
residence  of  the  debtor,  not  his  domicile,  that  determines  his 
status  in  an  attachment  proceeding  begun  in  the  county 
where  his  property  is  situated ;  and  if  he  has  no  abode  or 
home  within  the  State  where  process  may  be  served  on  him, 
his  property  is  subject  to  attachment,  notwithstanding  he 
may  not  have  acquired  a  residence  elsewhere. ^^ 

"Snyder.  5.701;  Wilson,  4.365;  Ohio  Gen.  Code,  Sec.  11.819  (1910), 
Kansas.     4,624      (1901),     identical;       similar. 

Nebraska,     1,171      (1907),     similar;  n  Thompson    v.    Ogden,    3    C.    C, 

X.S.    (Ohio),  51. 


§  292  mebwine's  trial  op  title  to  land.  244 

When  a  party  left  a  State  with  his  family,  for  another 
State,  with  the  intention  of  returning,  in  case  he  could 
compromise  with  his  creditors  there,  or  to  remain  if  he  could 
not  do  so,  and  get  employment,  neither  of  which  happened, 
and  in  the  meantime,  the  real  estate  in  the  State  which  he 
had  left  was  seized  by  writ  of  attachment,  and  he  shortly 
afterwards  left  for  a  third  State,  it  was  held  that  these 
facts  did  not  constitute  him  a  nonresident  of  the  first  State, 
the  court  holding  that  mere  nonresidenee  for  any  length  of 
time,  unless  aided  by  some  unequivocal  act  showing  an  inten- 
tion not  to  return,  will  not  cause  loss  of  domicile  in  the  first 
State/- 

An  absence  from  one's  home  for  years,  where  the  intention 
is  not  to  remain,  if,  in  the  meanwhile  the  intention  is  not 
destroyed  by  some  unequivocal  act,  signifying  the  purpose 
to  change  the  domicile,  does  not  destroy  the  right  to  claim 
the  former  residence  as  if  it  had  never  been  interrupted  by 
the  parties.^^ 

An  attachment  may  issue  on  the  grounds  of  nonresidency, 
when  the  defendant  is  a  partnership,  of  which  all  the  mem- 
bers reside  out  of  the  State,  the  partnership  being  formed 
for  the  purpose  of  carrying  on  business  here.  And  in  an 
attachment  against  the  property  of  such  nonresident  firm,  it 
may  be  sued  in  its  company  name,  and  service  may  be 
had  by  leaving  a  copy  of  the  summons,  with  the  indorsements 
thereon,  in  accordance  with  the  statutes  in  such  case.^* 

The  attachment  may  be  based  both  on  the  groimds  of  non- 
residency  and  the  defendant  so  concealing  himself  that  sum- 
mons cannot  be  served  on  him.^^  And  an  attachment  writ 
brought  against  a  nonresident  of  the  State  will  not  be  dis- 
charged by  the  defendant  becoming  a  resident  after  the  writ 
is  issued.^**    A  resident  of  the  State  may  become  a  nonresident 

12  Smith  V.  Dalton,  1  C.  S.  C.  R.  i*  Byers  v.  Schlupp,  51  O.  S.  300. 
(Ohio),   150.                                                       isEaymond  v.   Xix,  5   Okla.   656, 

13  Egan     V.     Lumsden,     2     Disney       49  Pac.   110. 

(Ohio),  168.  isLarmer  v.  Kelly,   10  Kan.  299. 


245  REAL   ESTATE   UNDER   ATTACHMENT.  §  293 

by  leaving  the  State  with  the  intention  of  becoming  a  non- 
resident, and  he  does  not  become  a  nonresident  until  he  is 
entirely  out  of  the  State.^^  Where  the  real  estate  of  a  non- 
resident is  attached  upon  the  ground  of  nonresidency,  no 
summons  need  issue  for  him  in  the  action/^  It  has  been 
held  that  attachment  will  lie  for  a  tort,  the  ground  for  the 
affidavit  being  nonresidency.^'' 

Sec.  293.     Has  absconded  with  intent  to  defraud  his  cred- 
itors. 

It  is  made  a  ground  of  attachment  for  a  defendant  to 
abscond  with  intent  to  defraud  his  creditors.  Under  this 
provision  of  the  statute,  it  was  held  the  ground  authorized 
an  attachment  on  partnership  property,  for  one  partner  to 
abscond,  and  the  other  to  dispose  of  part  of  the  partnership 
property  and  to  continue  to  dispose  of  the  rest  of  it.  And 
an  attachment  may  be  laid  on  the  firm  property  where  one 
partner  avoids  the  service  of  process  by  absconding,  and  the 
copartner  remaining  in  possession  of  the  stock  of  goods 
belonging  to  the  firm,  and  said  firm  is  insolvent.-" 

A  citizen  of  this  State  has  the  right  to  move  his  property 
therefrom  to  another  State,  and  it  will  not  authorize  an 
attachment.  It  is  only  when  he  absconds  with  intent  to 
defraud  that  it  is  allowed."^  And  when  he  hides  or  conceals 
himself,  or  absents  himself  clandestinely,  then  he  can  be 
said  to  abscond.-^ 


"  Ballinger    v.   Lautier,    15    Kan.  attack.     Brown  v.   Bose,   75   N.   W. 

608;    Swanly  v.  Hutchin,   13  N.  W.  536,  70  Am.  St.  379. 

(Xeb.)     282;    Johnson    v.    May,    68  i9  Kid  v.  Seifert,   11   Okla.  32,  65 

K.   W.    (Neb.)    1,032.  Pac.   931. 

isWestcott  V.   Archer,    11   X.   W.  20  Sellen    v.    Chreshfeld,    1    Hand. 

(Neb.)     495;     Grebe    v.    Jones,    IS  (Ohio),  87. 

N.  W.  81;    Bannister  v.  Carroll,  43  21  Dunn  v.  Claunch.  13  Okla.  517, 

Kan.  64,  22  Pac.  1,012.     Where  real  76    Pac.    143;    see,    also,    Gundy   v. 

estate  is  attached  and  sold,  the  pro-  Jolly,  53  N.  W.    (Neb.)    658. 

ceeding  is   not  subject  to  collateral  --  Gundy    v.    Jolly,    47    Am.    St. 

(Neb.)    460. 


§  294  merwine's  trial  op  title  to  land.  246 

Sec.  294.    When  the  debt  has  been  fraudulently  or  criminally 
incurred. 

It  is  also  made  a  ground  for  issuing  the  writ  of  attach- 
ment for  a  defendant,  where  he  has  fraudulently  contracted 
the  debt,  or  fraudulently  incurred  the  liability  or  obligation, 
for  which  suit  is  about  to  be  or  has  been  brought. 

The  writ  of  attachment  will  be  issued  when  the  defendant 
has  fraudulently  contracted  a  debt  by  an  agreed  claim  for 
unliquidated  damages  due  the  plaintiff  by  assaulting  or 
beating  him.-'^  It  will  be  issued  where  the  action  is  brought 
for  false  and  fraudulent  representations  as  to  the  value  of 
property ;  '-'*  and  it  will  be  issued  on  the  ground  now  under 
discussion  when  the  action  is  brought  to  recover  money  won 
by  the  defendant  by  means  of  a  gaming  device  known  as  a 
slot  machine.-^ 

The  writ  will  not  be  allowed  under  the  ground  now  being 
discussed  where  the  action  is  to  recover  for  the  bite  of  a 
vicious  dog  harbored  by  the  defendant,-"  nor  for  a  cause  of 
action  arising  from  a  malicious  attachment ;  -^  nor  for  con- 
version by  an  agent  in  another  State,  of  the  proceeds  of 
certain  claims  sent  to  him  by  a  bank  in  this  State,  for  col- 
lection ;  -^  nor  where  the  claim  arises  from  the  liability  of 
defendant  over  a  contract ;  "^  nor  in  a  case  where  the  obliga- 
tion was  fraudulently  incurred  on  account  of  a  debt  not 
yet  due.^" 

It  has  been  held  that  an  offer  by  a  debtor  to  make  a 
voluntary  assignment,  is  no  evidence  of  fraud,  warranting 
the  writ  of  attachment.^^  A  chattel  mortgage  given  on  a 
stock  of  goods,   the  possession  remaining  in  the  mortgagor, 

23  Sturdevant  v.  Tuttle,  22  0.  S.  27  Glidden  v.  Joy,  8  C.  C.  (Ohio), 
111.  157. 

24  Shawnee  v.  Bank,  1  C.  C,  N.S.  -^  Cleveland  v.  Ohio,  1  Disn. 
(Ohio),  5G9.  (Ohio),  409. 

25  Wise  V.  Martin,  7  N.  P.   (Ohio) ,  29  Ibid. 

,660.  '"  Stone  v.   Banking  Co.,   8   C.   C. 

26  Wintering      v.       Corigan,       36        (Ohio),  636. 

W.  L.  B.   (Ohio),  86.  si  Kemper  v.  Fiscal,  4  Okla.  250, 

44   Pac.   205.* 


247  REAL   ESTATE    UNDER   ATTACHMENT.  §  295 

and  the  mortgagor  is  uot  required  to  account  for  daily 
sales,  is  a  fraud,  and  the  writ  will  lie  in  such  case.^-  Attach- 
ment upon  this  ground  will  not  lie  before  the  debt  is  due,^^ 
The  writ  will  not  lie  on  this  ground  in  favor  of  the  assignee 
against  anyone  but  his  immediate  assignor.^* 

Sec.  295.     Fraudulent  disposition  of  property. 

It  is  also  made  a  ground  for  the  issuing  of  the  writ  of 
attachment  for  a  defendant  to  be  about  to  remove  his  prop- 
erty, or  a  part  thereof,  out  of  the  jurisdiction  of  the  court, 
with  the  intent  to  defraud  his  creditors.  This  is  in  the 
exact  words  of  the  Ohio  statute,  and  we  here  give  the 
authorities  in  that  State  upon  this  point.  It  has  been  there 
held  that  such  attachment  cannot  be  maintained  on  the 
ground  of  the  constructive  fraudulent  intent  to  dispose  of 
or  sell  property,^^  nor  will  the  formation  of  a  corporation  and 
the  transfer  to  it  by  a  debtor  of  his  property  in  the  absence 
of  any  fraudulent  design,  be  sufficient,^®  nor  a  conveyance 
by  a  debtor  whose  solvency  is  doubtful,  to  his  wife,  without 
consideration,  made  without  intent  to  defraud,"  nor  will  it 
be  sufficient  to  authorize  the  issuance  of  the  writ  for  a  debtor 
to  remove  his  property  out  of  the  county  without  any  intent 
to  defraud  his  creditors.^^  It  is  not  sufficient  ground  to 
authorize  the  issuing  of  a  writ  under  this  section  of  the 
statute,  for  a  debtor  to  pay  off  creditors  preferentially,^** 
nor  that  a  debtor  is  hastening  to  pay  off  other  debts.**' 

In  all  cases  where  an  attachment  is  asked  under  the 
grounds  of  the  statute  now  being  discussed,  the  practitioner, 


32  Ranner  v.  Xelson,  10  Okla.  675,  37  McFarland  v.  :MiIls,  4  W.  L.  B. 

65  Pac.  98.  (Ohio),    1,064. 

33Jaffrey    v.    Wolf,    1    Okla.    312,  38  McAllister    v.    Davy,    5    X.    P. 

33    Pac.    945.  274. 

34  Thwing    V.    Winkler,    13    Okla.  39  Morton  v.  Sterritt,  4  W.  L.  G. 
643,  75  Pac.  1,126.  (Ohio),   132. 

35  Hoyman  v.  Beverstock,  8   C.  C.  ^o  Morgan  v.   Hays,    10   W.  L.  G. 
(Ohio),  473.  (Ohio),  83. 

36  Union     v.     Packard,     1     C.     C. 
(Ohio),  76. 


§§  296, 297         merwine's  trial  of  title  to  land.  248 

in  his  affidavit  for  the  attachment,  must  bring  himself 
strictly  within  the  grounds  set  forth  in  the  statute,  or  the 
court  will  have  no  jurisdiction  to  hold  the  property  seized, 
and,  in  cases  where  the  attachment  is  sought  for  the  reason 
that  the  defendant  is  about  to  abscond,  or  remove,  or  con- 
vert his  property  into  money  for  the  purpose  of  placing  it 
beyond  the  reach  of  his  creditors,  or  fraudulently  and  crim- 
inally contracted  the  obligation  sued  on,  precise  and  definite 
allegations  will  be  required,  and  both  the  letter  and  spirit 
of  the  law  be  satisfied,  or  the  proceedings  will  be  dismissed.^^ 

Sec.  296.     The  attachment  bond — Attorney's  fee. 

The  order  of  attachment  must  not  be  issued  by  the  clerk 
until  an  undertaking  on  the  part  of  the  plaintiff  has  been 
executed  by  one  or  more  sufficient  sureties,  approved  by  the 
clerk  and  filed  in  his  office,  in  a  sum  not  exceeding  double 
the  amount  of  the  plaintiff's  claim,  to  the  effect  that  the  plain- 
tiff shall  pay  to  the  defendant  all  damages  that  he  may  sustain 
by  reason  of  the  attachment,  including  reasonable  attorneys' 
fees,  if  the  order  be  wrongfully  obtained ;  but  no  undertaking 
can  be  required  where  the  party,  or  parties  defendant  are 
nonresidents  of  the  State,  or  a  foreign  corporation.*^ 

Sec.  297.     The  order  of  attachment,  its  requirements  and  to 
whom  directed. 

The  order  of  attachment  must  be  directed  and  delivered 
to    the   sheriff.      It   must    require    him    to    attach    the    lands, 

4iGury  V.   Tannenwald,    18   Ohio,  Okla.    61,    65    Pac.    026;    Shelley  v. 

481.  Ziegler,   2   Okla.    729,    98   Pac.   989. 

42  Snyder,  5,703;  Wilson,  4,367;  As  to  amount  of  bond,  see  Gapen 
Kansas,  4,626  (1901),  identical;  v.  Stevenson,  18  Kan.  140.  As  to 
Ohio  Gen.  Code,  Sec.  11,821,  iden-  the  effect  of  not  giving  bond,  see 
tical.  As  to  the  measure  of  dam-  Ballinger  v.  Lankier,  15  Kan.  1,608. 
ages  on  an  action  on  attachment  The  bond  in  cases  where  a  non- 
bond,  see  Winton  v.  Myers,  8  Okla  resident  becomes  a  resident,  see 
421,  58  Pac.  634.  As  to  res  adpj-  Lanier  v.  Kelly,  10  Kan.  299. 
dicata,    see    Lane    v.    Lowden      11 


249  REAL   ESTATE    UNDER   ATTACHMENT.  §§298,299 

tenements,  goods,  chattels,  stocks,  rights,  credits,  money  and 
effects  of  the  defendant  in  his  county,  not  exempt  by  law, 
from  being  applied  to  the  payment  of  the  plaintiff's  claim, 
or  so  much  thereof  as  will  satisfy  the  plaintiff's  claim,  to 
be  stated  in  the  order  as  in  the  affidavit,  and  the  probable 
cost  of  the  action  not  exceeding  fifty  dollars/^ 

Sec.  298.  The  order  of  attachment  may  be  issued  to  different 
counties. 
Orders  of  attachment  may  be  issued  to  the  sheriffs  of 
different  counties,  and  several  of  them  may,  at  the  option 
of  the  plaintiff,  be  issued  at  the  same  time,  or  in  succes- 
sion; but  only  such  as  have  been  executed  can  be  taxed  in 
the  costs,  unless  otherwise  directed  by  the  court.** 

Sec.  299.    When  returnable. 

The  return  day  of  the  order  of  attachment,  when  issued 
at  the  commencement  of  the  action,  must  be  the  same  as 
that  of  the  summons.  When  issued  afterwards,  it  must  be 
twenty  days  after  its  issuance.*^ 


43  Snyder,  5.704:  Wilson,  4,368;  "Snyder,  5,705;  Wilson,  4,369; 
Kansas,  4,627  (I'j;,.  ,  identical;  Ohio  Gen.  Code,  Sec.  11,820  (1910), 
Ohio  Gen.  Code,  Sec.  11,822  (1910),  identical;  Kansas,  4,277  (1889). 
identical.  Service  on  Sunday  45  Snyder,  5,706;  Wilson,  4,370- 
illegal.  Morris  v.  Shew,  29  Kan.  Kansas,  4,629  (1901),  identical; 
661.  Eeturn  must  show  attach-  Ohio  Gen.  Code,  Sec.  11,824  (1910) 
ment  on  the  property  of  the  de-  identical.  Xot  void  if  not  ordered 
fendant.  Rappine  v.  MoPherson,  to  return  same  in  ten  days.  Ray- 
2  Kan.  340.  The  return  must  show  mond  v.  Xix,  5  Okla.  656,  49  Pac. 
what  property  was  levied  on.  Hard-  1,110;  Smith  v.  Peyton,  13  Kan. 
ing  V.  Guaranty,  43  Pac.  (Kan.)  362.  A  return  one  day  prior  to  the 
385.  The  release  of  the  levy  will  return  day  does  not  invalidate  the 
not  prevent  another  levy  on  the  le\'y.  Dunlap  v.  McFarland,  25 
same  property.  Dolan  v.  Wilker-  Kan.  488.  Property  may  be  de- 
son,  48  Pac.  (Kan.)  23.  The  writ  scribed  in  the  return  by  reference 
not  void  because  not  made  return-  to  the  other  papers.  WagstaflF  v. 
able  in  ten  days.  Raymond  v.  Nix,  Moser,  55  Pac.  (Kan.)  584. 
5  Okla.  656,  49  Pac.  1,110. 


§§  300,  301         merwine's  trial  of  title  to  land. 


250 


Sec.  300.     The  order  in  which  the  writ  is  to  be  executed. 

Where  there  are  several  orders  of  attachment  against  the 
same  defendant,  they  must  be  executed  in  the  order  in  which 
they  were  received  by  the  sheriff.*'* 

Sec.  301.    The  manner  of  the  execution  of  the  order. 

The  order  of  attachment  must  be  executed  by  the  sheriff, 
without  delay.  He  is  required  to  go  to  the  place  where  the 
defendant's  property  may  be  found,  and  declare  that,  by 
virtue  of  his  order,  he  attaches  said  property  at  the  suit 
of  the  plaintiff ;  and  the  officer,  with  two  householders,  who 
are  first  sworn  or  affirmed  by  the  court,  must  make  a  true 
inventory  and  appraisement  of  all  the  property  attached, 
which  must  be  signed  by  the  officer,  and  householders,  and 
returned  with  the  order.*^ 

When  the  property  attached  is  real  property,  the  officer 
must  leave  witli  the  occupant  thereof,  or  if  there  be  no 
occupant,  in  a  conspicuous  place  thereon,  a  copy  of  the 
order.** 


46  Snyder,  5,707;  Wilson,  4,371; 
Kansas,  4,630  (1901),  identical; 
Ohio  Gen.  €ode,  Sec.  11,825  (1901), 
identical;  Nebraska,  1,177  (1907), 
identical.  The  lien  dates  from  the 
time  the  levy  was  made.  Burnham 
V.  Dixon,  5  Okla.  112,  47  Pac.  1,059. 
An  amendment  relates  back  to  the 
time  of  the  filing  of  the  original 
petition.  Symes  v.  Burnham,  6 
Okla.  618,  52  Pac.  918;  Coyle  v. 
Xix,  6  Okla.  618,  52  Pac.  918.  As 
to  priority  of  the  attachment  lien, 
see  Carney  v.  Taylor,  4  Kan.  179 ; 
Tootle  V.  Miner,  34  Pac.  (Kan.) 
401;  Larrabee  v.  Sarks,  23  Pac. 
(Kan.)  598;  Standard  v.  Lansing, 
48  Pac.    (Kan.)    638. 

4T  Snyder,  5,708;  Wilson,  4,372 
Kansas,  4,361  (1901),  identical 
Nebraska,  1,198  (1907),  identical 
Ohio  Gen.  Code,  Sec.  11,826   (1910), 


identical;  Emerson  v.  Thacher,  51 
Pac.  (Kan.)  50;  Dodson  v.  Wight- 
man,  49  Pac.  (Kan.)  790.  As  to 
eiTect  of  levy  on  wrong  property, 
see  Cole  v.  Edwards,  72  N.  W. 
(Neb.)  1,045;  Omaha  v.  Robinson, 
77  N.  W.  (Neb.)  73;  Benson  v.  Can- 
field,  89  N.  W.  (Neb.)  664;  First, 
etc.,  V.  Avery,  95  N.  W.  (Neb.) 
622 ;  Peckanpaugh  v.  Quilan,  12 
N.  W.  (Neb.)  104.  Duty  as  to  care 
of  property.  Williams  v.  Swisherd, 
65  N.  W.  (Neb.)  788.  Attorney's 
fee  allowed.  Raymond  v.  Gree,  10 
N.  W.  709,  41  Am.  St.  (Neb.)  763. 
48  Snyder,  5,709;  Wilson,  4,373; 
Ohio  Gen.  Code,  Sec.  11,827  (1910), 
identical;  Kansas,  4,632  (1901), 
identical;  Wilkins  v.  Tourtellott, 
22  Pac.  (Kan.)  11;  Blake  v.  Rider, 
14  Pac.  (Kan.)  280;  Westerfelt  v. 
Hagge,  85  Jf.  W.    (Neb.)    852. 


251  REAL   ESTATE   UNDER   ATTACHMENT.  §§  302-304: 

Sec.  302.     The  officer  may  leave  property  in  possession  of 
whom — Retention  bond. 

The  sheriff  must  deliver  the  property  attached  to  the 
person  in  whose  possession  it  was  found,  upon  the  execution, 
by  such  person,  in  the  presence  of  the  sheriff,  of  an  under- 
taking to  the  plaintiff,  with  one  or  more  sufficient  sureties, 
resident  in  the  county,  to  the  effect  that  the  parties  to  the 
same  are  bound,  in  double  the  appraised  value  thereof;  that 
the  property,  or  its  appraised  value  in  money,  will  be  forth- 
coming to  answer  the  judgment  of  the  court  in  the  action; 
but  if  it  be  made  to  appear  to  the  court  that  any  part  of 
said  property  has  been  lost  or  destroyed  by  unavoidable 
accident,  the  value  thereof  must  be  remitted  to  the  person 
so   bound.**'' 

Sec.  303.  Different  attachments — ^The  inventory  and  ap- 
praisements. 
Different  attachments  of  the  same  property  may  be  made 
by  the  same  officer  and  one  inventory  and  appraisement  will 
be  sufficient ;  and  it  will  not  be  necessary  to  return  the  same 
with  more  than  one  order.^** 

Sec.  304.    How  subsequent  attachments  may  be  made. 

"Where  property  is  under  attachment,  it  must  be  attached 
under  subsequent  orders,  as  follows : 

1st.  If  it  be  real  property,  it  must  be  attached  in  the 
manner  prescribed  by  the  statute  (Snyder,  5709;  Wilson, 
4373). ^1 

49  Snyder,    5,710;    Wilson,    4,374;  Kavenaugli,   63  X.  AY.    (Xeb.)    306; 

Kansas,     4,633      (1901),     identical;  Corteleon  v.  Mabin,  59  X.  W.  (Neb.) 

Nebraska,    1,179    (1907),    identical;  .94;    Young    v.    Joseph,    99    X.    W. 

Greenwell    v.    Evans,    9    Okla.    359,  (Xeb.)    522. 

60    Pac.   249;    Johnson    v.    Weather-  so  Snyder,    5.731;    Wilson,    4,395; 

wax,   9   Kan.   75;    Tyler   v.   Safford,  Ohio  Gen.  Code,  Sec.  11,834   (1910), 

24  Kan.  581;   Case  v.  Steele,  8  Pac.  identical. 

(Kan.)     242;     Wolf    v.    Hahm,    28  si  Snyder,    5,732;    Wilson,    4.396; 

Kan.    588;    Wilson    v.    Shepard,    16  Ohio  Gen.  Code,  Sec.  11,835   (1910), 

N.  W.    (Xeb.)    826;   Pxilton  v.  Pvoss,  identical. 
2    X.    W.     (Xeb.)     862;    Dewey    v. 


§§  305-307  mebwine's  trial  of  title  to  land.  252 

Sec.  305.  What  the  officer's  return  of  the  order  must  show. 
The  officer  must  return  upon  every  order  of  attachment, 
what  he  has  done  under  it.  The  return  must  show  the 
property  attached,  and  the  time  it  was  attached.  When 
garnishees  are  served,  their  names,  and  the  time  each  was 
served,  must  be  stated.  The  officer  must  also  return  with  the 
order  all  undertakings  given  under  it." 

Sec.  306.  A  receiver  may  be  appointed  to  take  charge  of 
property — His  bond. 
A  court,  or  any  judge  thereof,  during  vacation,  may,  on 
application  of  the  plaintiff,  and  on  good  cause  shown,  appoint 
a  receiver,  who  must  take  an  oath  faithfully  to  discharge  his 
duties,  and  who  must  give  an  undertaking  to  the  State  of 
Oklahoma  in  such  sum  as  the  court  or  judge  may  direct,  and 
with  such  security  as  shall  he  approved  by  the  clerk  of  such 
court,  for  the  faithful  performance  of  his  duties  as  such 
receiver,  and  to  pay  over  all  money  and  account  for  all 
property  which  may  come  into  his  hands  by  virtue  of  his 
appointment,  at  such  times  and  in  such  manner  as  the  court 
may  direct.^^ 

Sec.  307.    The  receiver's  report. 

Such  receiver  must,  when  required,  report  his  proceedings 
to  the  court,  and  hold  all  moneys  collected  by  him,  and  the 
property  which  may  come  into  his  hands,  subject  to  the  order 
of  the  court.^* 

B2  Snyder,    5,733 ;    Wilson,    4,397 ;  property  attached.     Harding  v.  Guar- 

Kansas,     4,657      (1901),     identical;  anty,  43  Pac.    (Kan.)    835;  but  see 

(Nebraska,    1,184    (1907),    identical;  Grebe   v.   Jones,    18    X.    W.    (Neb.) 

Rappine  v.  McPherson,  2  Kan.  340.  18;    see,   also,   Griffith   v.   Short,    15 

The  return  may  be  amended  by  the  iN.    W.    (Xeb.)     335,    as    to    amend- 

officer    who    served    the    same,    even  ments. 

though  out  of  office.     Eapp  v.  Kyle,  53  Snyder,    5.734;    Wilson,    4,398; 

26  Kan.  89.     The  writ  should   con-  Nebraska,  1,186   (1907),  identical, 

tain    a    specific    description    of    the  54  Snyder,  5,737;  Wilson,  4,401. 


253  REAL   ESTATE   UNDER   ATTACHMENT.  §§  308-310 

Sec.  308.     Sheriff  to  act  as  receiver,  when. 

Where  a  receiver  is  not  appointed  by  the  court,  or  judge 
thereof,  as  provided  in  the  statute  (Snyder,  5734;  Wilson, 
4398),  the  sheriff  or  other  officer  attaching  the  property,  will 
have  all  the  powers  and  perform  all  the  duties  of  a  receiver 
appointed  by  the  court,  or  judge,  and  may,  if  necessary, 
commence  and  maintain  actions  in  his  own  name,  as  such 
officer.  He  may  be  required  to  give  security  other  than  his 
official  undertaking.^^ 


Sec.  309.    The  attachment  discharged,  when — Bond. 

If  the  defendant,  or  other  person  on  his  behalf,  at  any 
time  before  judgment,  cause  an  undertaking  to  be  executed 
to  the  plaintiff,  by  one  or  more  sureties,  resident  in  the 
county,  to  be  approved  by  the  court,  in  double  the  amount 
of  plaintiff's  claim,  as  stated  in  his  affidavit,  to  the  effect 
that  the  defendant  will  perform  the  judgment  of  the  court, 
the  attachment  in  such  action  must  be  discharged  and  resti- 
tution made  of  any  property  taken  under  it,  or  the  pro- 
ceeds thereon.  Such  undertaking  will  also  discharge  the 
liability  of  a  garnishee  in  such  action  for  any  property  of 
the  defendant  in  his  hands.^^ 


Sec.  310.  The  defendant  may  execute  bond  before  sheriff  or 
clerk  in  vacation. 
The  undertaking  mentioned  in  the  last  paragraph  may,  in 
vacation,  be  executed  in  the  presence  of  the  sheriff  having 
the  order  of  attachment  in  his  hands,  or  after  the  return 
of  the   order,   before   the   clerk,   with   the   same   effect   as  if 

55  Snyder,  5,738;   Wilson,  4,402.  Okla.   302,   91    Pac.   850;    Moffitt  v. 


56  Snyder,  5,740;  Wilson,  4.404 
Kansas,  4,664  (1901),  identical 
Ohio  Gen.  Code,  Sec.  11,844  (1910) 


Garrett,  23  Okla.  398,  100  Pac. 
533;  McGonegal  v.  Gordon,  11  Kan. 
168;   Eddy  v.  Moore,  23  Kan.   113; 


W^inton    v.    Myers,    8    Okla.    42.    58       INIcKenny  v.   Purcell,   28   Kan.   446; 
Pac.    634;    Drovers    v.    Custer,     19       St.  Joseph  v.  Casey,  14  Kan.  504. 


§§  311,  312         merwine's  trial  of  title  to  land.  254 

executed  in  court,  the  sureties  in  either  case  to  be  approved 
by  the  officer  before  whom  the  undertaking  is  executed." 

Sec.  311.    Judgment  in  the  action — How  satisfied. 

If  judgment  be  rendered  in  the  action  for  the  defendant, 
the  attachment  must  be  discharged  and  the  property  at- 
tached, or  its  proceeds  must  be  returned  to  him.^^ 

If  judgment  be  rendered  for  the  plaintiff,  it  shall  be 
satisfied  as  follows :  So  much  of  the  property  remaining  in 
the  hands  of  the  officer,  after  applying  the  money  arising 
from  the  sale  of  perishable  property,  and  so  much  of  the  per- 
sonal property,  lands  and  tenements,  if  any,  whether  held 
by  legal  or  equitable  title,  as  may  be  necessary  to  satisfy 
the  judgment,  must  be  sold  by  order  of  court,  under  the 
same  restrictions  and  regulations  as  if  the  same  had  been 
levied  on  by  execution ;  and  the  money  arising  therefrom, 
with  the  amount  which  may  be  recovered  from  the  garnishees, 
must  be  applied  to  satisfy  the  judgment  and  costs.  If  there 
be  not  enough  to  satisfy  the  same,  the  judgment  must  stand, 
and  execution  may  issue  thereon  for  the  residue,  in  all 
respects  as  in  other  cases.  Any  surplus  of  the  property  at- 
tached, or  its  proceeds,  must  be  returned  to  the  defendant.^'' 

Sec.  312.    Court  may  compel  delivery  of  attached  property. 

The  court  may  compel  the  delivery  to  the  sheriff,  for 
sale  of  any  attached  propertj^  for  which  an  undertaking 
may  have  been  given,  and  may  proceed  summarily,  on  such 
undertaking,  to  force  delivery  of  the  property,  or  the  pay- 
ment of  such  sum  as  may  be  due  upon  the  undertaking,  by 
rules  and  attachments,  as  in  cases  of  contempt.®'' 

E7  Snyder,  5,739;   Wilson,  4,405.  Nebraska,    1.201    (1907),    identical; 

B8  Snyder,    5,740;    Wilson,    4,408;  Ohio  Gen.  Code,  Sec.  11,855   (1910), 

Kansas,     4,668      (1901),     identical;  identical;     Fisher     v.     Haxtun,     2G 

Nebraska,    1,200    (1907),    identical;  Kan.    155;    Mills  v.  Dixon,   42  Pac. 

Ohio  Gen.  Code,  Sec.  11,854  (1910),  (Kan.)    1,014. 

identical.  6o  Snyder,  5,746;  Wilson,  4,410. 

59  Snyder,    5,745;    Wilson,    4,409; 
Kansas,     4,669     (1901),     identical; 


255  REAL   ESTATE   UNDER   ATTACHMENT.  §§  313-316 

Sec.  313.    May  order  retaking-  of  property. 

The  court  may  order  the  sheriff  to  repossess  himself,  for 
the  purpose  of  selling  it,  of  any  of  the  attached  property 
which  may  pass  out  of  his  hands,  without  having  been  sold 
or  converted  into  money;  and  the  sheriff  shall,  under  such 
order,  have  the  same  power  to  take  the  property  as  he  would 
have  under  an  order  of  attachment.*'^ 

Sec.  314.    Reference  may  be  ordered,  when. 

"Where  several  attachments  are  executed  on  the  same  prop- 
erty, or  the  same  persons  are  made  garnishees,  the  court,  on 
motion  of  any  of  the  plaintiffs,  may  order  a  reference,  to 
ascertain  the  amounts  and  priorities  of  the  several  attach- 
ments, or  may  determine  the  amounts  and  priorities  without 
such  reference.'^- 

Sec.  315.    Death  of  defendant. 

From  the  time  of  the  issuing  of  the  order  of  attachment, 
the  court  will  be  deemed  to  have  acquired  jurisdiction,  and 
to  have  control  of  all  subsequent  proceedings  under  the 
attachment ;  and  if,  after  issuing  of  the  order,  the  defendant, 
being  a  person,  should  die,  or  a  corporation,  and  its  charter 
should  expire  by  limitation,  forfeiture  or  otherwise,  the 
proceedings  shall  be  carried  on,  but  in  all  such  cases,  other 
than  where  the  defendant  was  a  foreign  corporation,  his 
legal  representatives  must  be  made  parties  to  the  action.®^ 

Sec.  316,    Defendant  may  move  for  additional  security,  when. 

The  defendant  may,  at  any  time  before  judgment,  after 
reasonable  notice  to  the  plaintiff,  move  the  court  for  addi- 
tional security  on  the  part  of  the  plaintiff;  and  if,  on  such 
motion,  the  court  is  satisfied  that  the  surety  in  the  plaintiff's 
undertaking  has  removed  from  this  State,  or  is  not  sufficient 

61  Snyder,  5,747;  Wilson,  4,411.  63  Snyder,    5,749;    Wilson,    4,413; 

«2  Snyder,  5,748;  Wilson,  4,412.  Mosely  v.  Southern,  4  Okla.  492,  46 

Pac.   508. 


§§317,318         merwine's  trial  of  title  to  land. 


256 


for  the  amount  thereof,  it  may  vacate  the  order  of  attach- 
ment, and  direct  the  restitution  of  any  property  taken  under 
it,  unless,  in  a  reasonable  time,  to  be  fixed  by  the  court, 
sufficient  security  be  given  by  the  plaintiff.''* 

Sec.   317.    The  defendant  may  move  to   discharge — Attach- 
ment— The  evidence  in  the  case. 

The  defendant  may,  at  any  time  before  judgment,  upon 
reasonable  notice  to  the  plaintiff,  move  to  discharge  an 
attachment,  as  to  the  whole  or  part  of  the  property  at- 
tached. If  the  motion  be  made  upon  affidavits  on  the  part 
of  the  defendant,  or  papers  and  evidence  in  the  case,  but  not 
otherwise,  the  plaintiff  may  oppose  the  same  by  affidavits 
or  other  evidence  in  addition  to  that  on  which  the  order  of 
attachment  was  made.*'^ 

Sec.  318.    The  attachment  before  it  is  due. 

Where  a  debtor  has  sold,  conveyed,  or  otherwise  disposed 
of  his  property,   with  the   fraudulent  intent   of   cheating   or 


64  Snyder,  5,150;  Wilson,  4,414. 

65  Snyder,  5,751  and  5,752;  Wil- 
son, 4,415  and  4,416;  Kansas,  4,604 
and  4,666  (1901),  identical;  Ne- 
braska, 1,208  and  1,209  (1907), 
identical;  Ohio  Gen.  Code,  Sees. 
11,862  and  11,863  (1910),  identical; 
Carnahan  v.  Gustine,  2  Okla.  399, 
37  Pac.  594;  Cassity  v.  Morris, 
19  Okla.  203,  91  Pac.  888;  Rum- 
son  V.  Merrill,  17  Okla.  44,  86  Pac. 
431;  Williams  v.  Farmer,  13  Okla. 
5,  73  Pac.  269;  Raymond  v.  Nix, 
5  Okla.  560,  49  Pac.  1,110;  Quinlan 
V.  Dadford,  28  Kan.  507 ;  Merchants 
V.  Danford,  28  Kan.  512;  Smith  v. 
Dearse,  21  Pac.  (Kan.)  167;  Guest 
V.  Ramsey,  33  Pac.  17;  Moffett  v. 
Boydston,  46  Pac.  (Kan.)  24; 
Wichita  v.  Records,  19  Pac.  (Kan.) 
346;  Mnrtrjage  v.  Norris,  54  Pac. 
(Kan.)    283;    Adams   v.    Lockwood, 


2  Pac.  (Kan.)  626;  Moline  v. 
Eustis,  57  N.  W.  (Neb.)  160;  Her- 
man V.  Hayes,  78  N.  W.  (Neb.) 
365;  Stutzner  v.  Printz,  61  N.  W. 
620;  Meyer  v.  Kiefer,  78N.  W.500; 
McCord  V.  Bovven,  70  N.  W.  950; 
Kilpatrick  v.  Bremers,  62  N.  W. 
(Neb.)      1,105;     Kountze    v.    Scott, 

72  N.  W.  585;  Skruner  v.  First,  80 
N.   W.  42;    McDonald  v.  McQuardt, 

73  N.  W.  (Neb.)  2S8;  Grotts  v. 
Nagel,  69  N.  W.  973;  Holloway  v. 
American,  89  N.  \\\  (Neb.)  382; 
Jordan  v.  Dewey,  59  N.  W.  (Neb.) 
88;  Johnson  v.  Bartek,  76  N.  W. 
(Neb.)  878;  Kendell  v.  August,  32 
Pac.  (Kan.)  635;  Meyer  v.  Mabin, 
28  Pac.  (Kan.)  1,011;  Chappell  v. 
Comins,  25  Pac.  216;  Olds  v.  Bebe- 
dict,  41  N.  W.  (Neb.)  254;  Citizen 
V.  Baird,  60  N.  W.  (Neb.)  551; 
Nebraska  v.  Fuering,  72  Neb.   1,003. 


257  REAL   ESTATE   UNDER   ATTACHMENT.  §  319 

defrauding  Ms  creditors,  or  to  hinder  or  delay  them  in  the 
collection  of  their  debts,  or  is  about  to  make  such  sale  or 
conveyance,  or  disposition  of  his  property,  with  such  fraud- 
ulent intent,  or  is  about  to  remove  his  property,  or  a  ma- 
terial part  thereof,  with  intent  or  to  the  effect  of  cheating 
or  defrauding  his  creditors,  or  of  hindering,  or  delaying 
them  in  the  collection  of  their  debts,  a  creditor  may  bring 
an  action  upon  his  claim,  before  it  is  due,  and  have  an 
attachment  against  the  property  of  the  debtor  as  in  other 
cases;  but  before  such  attachment  will  be  issued,  or  such 
action  be  maintained,  the  plaintiff,  or  his  agent  or  attorney, 
is  required  to  make  an  oath  in  writing,  setting  forth  the 
grounds  of  such  attachment  as  in  other  cases,  and  showing 
the  nature  of  the  plaintiff's  claim  that  it  is  just,  when  the 
same  will  become  due,  and  the  existence  of  some  one  or  more 
of  the  grounds  for  attachment  enumerated  in  this  para- 
graph.*'*'  But  no  judgment  can  be  entered  for  the  plaintiff 
on  his  claim  before  it  is  due,  but  the  proceeding  on  the 
attachment  may  be  conducted  without  delay.''^ 

Sec.  319.  The  procedure  by  which  real  estate  is  sold  under 
a  writ  of  attachment — The  form  for  petition  in 
such  case. 

District  Court  of County,  Oklahoma. 

,  Plaintiff, 


vs.  No. 
,  Defendant. 


PETITION. 

Comes  now  the  plaintiff,  and  for  his  cause  of  action  against 
the  defendant,  alleges  and  states  that  this  his  action  against 
said  defendant  is  founded  on  a  promissory  note,  of  which  the 
following  is  a  copy,  with  all  the  credits  and  indorsements 
thereon,  to-wit:   (Here  copy  same.) 

66  Snyder,  5,753;  Wilson,  4,417.  67  Snyder,  5,744;   Wilson,  4,422. 


§  320  merwine's  trial  op  title  to  land,  258 

The  following  are  the  indorsements  on  said  note :  Pay  to  the 
order  cf ,  without  recourse,  . 

On  the day  of ,  19 — ,  said  note  was,  for  a  valu- 
able consideration,  transferred  and  indorsed  to  plaintiff. 

There  is  due  plaintiff  from  the  said  defendant  on  said  note 

the  sum  of  $ ,  with  interest  thereon  from  the day 

of ,  19 — ,  at  the  rate  of  %  per  annum  until  paid. 

Wherefore,  the  premises  considered,  plaintiff  asks  judgment 

against  said  defendant  for  said  sum  of  $ ,  with  interest 

at  the  rate  of  %   per  annum,  from  the  day  of 

,  19 — ,  and  for  his  costs  herein  expended. 


Attorneys  for  Plaintiff. 


State  of  Oklahoma,  Okmulgee  County,  ss. : 

,  being  first  duly  sworn,  says  that  he  is  plaintiff  in  the 

above  action,  and  that  the  facts  stated  and  allegations  contained 
in  the  foregoing  action  are  true. 


Sworn  to  before  me  and  subscribed  in  my  presence,  this 
day  of  ,   19- 


[Seal.]  Notary  Public. 

My  commission  expires . 

Sec.  320.    The  afladavit  for  the  attachment. 

District  Court,  County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

,  Defendant. 

AFFIDAVIT   FOR   ATTACHMENT. 

State  of  Oklahoma,  County,  ss. : 

,  being  first  duly  sworn,  that  this,  his  said  civil  action, 

is  for  the  recovery  of  money  upon  a  debt  arising  upon  a  con- 
tract, to-wit :  one  promissory  note  made  by  said  defendant,  pay- 
able to and  by  him  transferred  and  assigned  to  plaintiff, 

said  note  being  for  the  principal  sum  of  $ and  interest 


259  REAL    ESTATE    UNDER    ATTACHMENT.  §  321 

thereon  from  the  day  of  ,  19 — ,  at  the  rate  of 

%  per  annum  until  paid;  that  plaintiff  believes  he  ought 

to  recover  the  sum  of  $ — thereon,  and  interest  on  said  sum 

from  the  day  of  ,  19 — ,  at  the  rate  of  % 

per  annum;   that  said  sum  is  just,   and   that  said  defendant 

,  is  a  nonresident  of  the  State  of  Oklahoma  (or  give  here 

any  of  the  other  statutory  grounds). 


Sworn  to  before  me  and  subscribed  in  my  presence,  this 
day  of  ,  19 — .  


[Seal.]  Notary  Public. 

My  commission  expires  . 

Sec.  321.     The  bond  in  such  action. 

District  Court,  County,  State  op  Oklahoma. 

,  Plaintiff, 

vs.  No.  

,  Defendant. 


ATTACHMENT    BOND. 

"We,  ,  ,  ,  as  principals,  and  — ,  and 

,  as  sureties,   do  hereby  undertake  and  bind  ourselves, 

jointly  and  severally,  unto  ,  to  the  effect  that  the  said 

plaintiff,  ,  shall  pay  the  defendant,  ,  all  damages 

which  he  may  sustain,  together  with  a  reasonable  attorney  fees, 
by  reason  of  the  attachment  in  this  case,  if  the  order  prove  to 
have  been  wrongfully  obtained. 

In  Witness  Whereof,  we  have  hereunto  affixed  our  hands 
on  this day  of ,  19 — . 


Principals. 


Sureties. 


§'§322, 322a        merwine's  trial  of  title  to  land.  260 

The  above  bond  and  the  sureties  thereon  approved  and  ac- 
cepted by  me  on  this day  of ,  19 — . 


Clerk. 

Sec.  322.     The  form  for  the  order  of  attachment  issued  by 
the  clerk  to  the  sheriff. 

District  Court,  County,  State  op  Oklahoma. 

,  Plaintiff, 

No.  . 


vs. 
,  Defendant 


The  State  of  Oklahoma, County,  ss. : 

To  the  Sheriff  of  said  County,  Greeting: 

You  are  commanded  to  attach  and  safely  keep  the  lands,  tene- 
ments, goods,  chattels,  stocks,  or  interest  in  stocks,  rights,  credits, 

moneys  and  effects  of  the  defendant,  ,  in  your  county, 

not  exempt  by  law  from  being  applied  to  the  payment  of  the 

claims  of  plaintiff, ,  or  so  much  thereof  as  will  satisfy  his 

claim  for  $ ,  with  interest  on  said  sum  from  the  

day  of  ,  19 — ,  at  the  rate  of  %  per  annum,  and 

also  for  $ ,  the  probable  costs  of  this  action. 

You  will  make  due  return  of  this  order  on  the  day  of 

,  19-. 

Witness  my  hand  and  seal  of  said  court,  this day  of 

,  19—.  , 


Clerk  of  said  Court. 

Sec.  322a.    The  form  for  sheriff's  return  of  the  order  of  at- 
tachment and  the  appraisement  thereunder. 

SHERIFF'S  RETURN  OF  ORDER  OF  ATTACHMENT. 

Received  this  order  on  the day  of ,  19 — ,  and  in 

obedience  to  the  command  thereof,  I  did,  on  the day  of 

,  19 — ,  in  the  presence  of  and  ,  two  free- 
holders of  said  county,  attach  the  real  estate  described  in 
schedule  marked  A,  hereto  attached  and  made  a  part  of  this 


261 


REAL    ESTATE    UNDER    ATTACHMENT.  §  323 


return;  and  having  first  administered  to  said  freeholders  the 
oath  required  by  law,  to  make  a  true  inventory  and  appraise- 
ment of  said  property,  we  proceeded  to  make  such  inventory 
and  appraisement,  as  wnll  fully  appear  by  reference  to  said 
schedule  A. 

SCHEDULE  A. 

^e,  ,  sheriff  of  said  County,  Oklahoma,  and 

'_    and  ,  two  freeholders  of  said  county,  do  truly 

inventory  and  appraise  the  property  of and  described  as 

follows,  situated  in  the  county  of  ,  State  of  Oklahoma, 

to-wit:  (Here  describe  it),  at  $ . 

Given  under  our  hands  this day  of ,  19     . 


Sheriff. 


Appraisers. 

Sec.  323.    The  form  for  the  affidavit  for  service  by  publica- 
tion upon  a  nonresident  defendant  in  attachment. 

District  Court,  County,  Oklahoma. 

,  Plaintiff, 

No. . 

vs. 

,  Defendant. 


AFFIDAVIT  FOR  SERVICE  BY  PUBLICATION. 

State  of  Oklahoma, County,  ss. : 

,  being  first  duly  sworn,  says  that  he  is  plaintiff  in  the 

above  action ;  that  this,  his  action,  is  upon  a  promissory  note  for 

the  sum  of  $ ,  with  interest  on  such  sum  from  the 

day  of  ,  said  note  having  been  made  by  and  in- 
dorsed to  plaintiff ;  that  service  of  summons  cannot  be  had  upon 
the  defendant  in  this  action ;  that  said  defendant  is  a  nonresident 
of  the  State  of  Oklahoma,  having  a  place  of  residence  in  the 

State,  ,  and  his  postoffice  is  ;  that  plaintiff  has 

used  due  diligence  to  locate  said  defendant  in  the  State  of  Okla- 
homa by  having  summons  issued  for  him  at  his  last  known  resi- 


§  324  merwine's  trial  of  title  to  land.  262 

dence,  and  has  inquired  from  persons  who  knew  him,  and 
has  been  unable,  after  the  use  of  such  diligence,  to  serve  de- 
fendant with  a  summons ;  that  in  this  action  an  order  of  attach- 
ment has  been  duly  issued  and  levied  upon  the  property  of  the 

defendant, ,  which  property  is  sought  by  such  proceeding 

in  attachment  to  be  appropriated  toward  the  satisfaction  of  such 
judgment  as  the  plaintiff  may  obtain  against  the  said  defendant, 


Sworn  to  before  me  and  subscribed  in  my  presence,  this 
day  of ,  19- 


My  commission  expires .  Notary  Public. 

Sec.  324.     The  form  for  notice  by  publication. 

District  Court, County,  Oklahoma. 

,  Plaintiff, 


vs.  No. . 

,  Defendant. 

LEGAL  NOTICE. 

The   defendant,  ,  whose  place  of  residence  is   in  the 

State  of  ,  at  ,  will  take  notice  that  on  day 

of ,  19 — , ,  in  said  court  commenced  a  civil  action 

against  him  to  recover  on  a  promissory  note  for  the  sum  of 

$ ,  with  interest  thereon  from  the  day  of  , 

19 — ,   which  note  had  been  made  to  and   indorsed   to 

plaintiff.  An  order  of  attachment  has  been  issued  in  said 
action  and  levied  on  the  following  described  real  estate,  situated 
in  said  county  of ,  State  of  Oklahoma,  to-wit:  (Here  de- 
scribe it.) 

Said  defendant, ,  is  required  to  answer  said  petition  on 

or  before  the  day  of ,  19 — ,  or  judgment  will  be 

taken  against  him  for  said  sum  of  $ ,  with  interest  on 

said  sum  at  the  rate  of %  per  annum,  and  for  costs  of 

suit.  , 

Plaintiff. 


Attorney  for  Plaintiff. 


263  REAL    ESTATE    UNDER    ATTACHMENT.  §§325,326 

Sec.  325.     Form  for  proof  of  publication  of  notice. 

State  of  Oklahoma, County,  ss. : 

,  of  lawful  age,  being  by  me  first  duly  sworn,  says  that 

he  is  the  of  the  ,  a  weekly  newspaper  published 

and  printed  in  the  city  of  ,  county  of ,  Okla- 
homa,  and   of   general   circulation  in   said  county   and   State; 

tliat  said  has  been  published  for  more  than  fifty-two 

consecutive  weeks  next  prior  to  the  dates  on  which  the  copy 
herein  referred  to  was  published,  and  the  notice  of  which  a 
true  copy  is  hereto  attached,  was  published  in  the  regular  and 

the  entire  edition  of  said ,  and  not  a  supplement  thereof, 

for  weeks,  the  first  publication  being  on  the day 

of ,  19—,  and  the  last  on  the day  of -,  19—, 

each  week  of  said  time  on  the  same  day  of  the  week. 


Sworn  to  before  me  and  subscribed  in  my  presence,  this 

day  of ,  19—.  ""' . 

My  commission  expires .  Notary  Puhhc. 

Sec.  326.    The  form  for  judgment  and  order  of  sale  of  the 
attached  property. 

District  Court,  County,  Oklahoma. 

,  Plaintiff, 

No. . 

,  Defendant. 


JUDGMENT  AND  ORDER  OF  SALE  OF  ATTACHED 
PROPERTY. 

Now,  on  this day  of ,  19—,  this  day  this  cause 

came  on  to  be  heard,  and  the  same  was  submitted  to  the  court 
by  the  plaintiff,  and  the  court,  upon  the  evidence,  finds  that  said 
defendant  is  a  nonresident  of  the  State  of  Oklahoma;  that  he 
has  been  served  by  summons  in  this  action  by  publication ;  that 
said  service  of  summons  by  publication  is  correct  in  all  things 
and  according  to  law ;  that  said  defendant  M^as  called  three  times 


§  327  merwine's  trial  of  title  to  land.  264 

in  open  court,  but  came  not,  and  has  failed  to  except,  demur  or 
answer  to  the  petition,  thereby  confessing  the  allegations  therein 
to  be  true. 

The  court  further  finds  that  there  is  due  the  plaintiff  from 

the  defendant  the  sum  of  $ ,  with  interest  on  said  sum 

from  the  day  of  ,  19 — ,  at  the  rate  of  % 

per  annum. 

It  is  Therefore  considered,  ordered  and  adjudged  that  plain- 
tiff" recover  out  of  the  said  real  estate  attached  herein  the  sum  of 
$ ,  with  interest,  and  costs  of  this  action,  taxed  at  $ . 

It  is  further  ordered  and  adjudged  by  the  court  that  so  much 
of  said  real  estate  so  attached  herein  as  may  be  necessary  to 
fully  satisfy  the  amount  so  found  due,  with  interest  and  costs 
and  accruing  costs,  shall  be  sold  under  the  same  restrictions  and 
regulations  as  if  the  same  had  been  levied  on  by  execution,  and 
the  money  arising  therefrom  be  applied  to  satisfy  said  judgment 

and  said  costs.  , 

Judge  of  said  Court. 

Sec.  327.    The  order  of  sale  in  attachment  proceedings  issued 
by  the  clerk  to  the  sheriff. 

District  Court,  County,  Oklahoma. 

,  Plaintiff, 


vs.  No. 

,  Defendant. 


To  the  Sheriff  of County,  Oklahoma,  Greeting: 

Whereas,  ,   plaintiff,  on   the  day  of  , 

19 — ,  sued  out  a  writ  of  attachment  from  the  clerk  of  the  district 

court  of  said County,  requiring  him  to  attach  the  lands, 

tenements,  etc.,  of  the  defendant  in  his  county,  not  exempt  by 
law  from  the  payment  of  plaintiff's  claim,  or  so  much  thereof 
as  would  satisfy  the  plaintiff's  claim. 

And  said  sheriff  returned  said  WTit,  executed  by  attaching  the 
following  described  real  estate,  to-wit :  (Here  describe  it.) 

Whereas,  afterwards  in  said  action  the  plaintiff  recovered  a 
judgment  in  said  action  in  the  sum  of  $ — ,  with  interest  on 


265  REAL    ESTATE    UNDER    ATTACHMENT.  §  328 

said  sum,  and  costs  and  accrued  costs,  to  be  paid  out  of  said 
real  estate  so  attached  as  aforesaid,  said  costs  being  taxed  at 
$ . 

You  are  therefore  hereby  commanded  to  sell  so  much  of  said 
real  estate  so  attached  as  may  be  necessary  to  satisfy  said  judg- 
ment for  said  sum,  interest  and  costs  and  increased  costs,  under 
the  same  restrictions  and  regulations  as  if  the  same  had  been 
levied  on  by  execution. 

You  will  make  due  return  of  your  proceedings  herein  to  our 

said  district  court  within days  from  the  date  herein,  and 

have  you  then  and  there  this  writ. 

Witness  my  signature  as  clerk  of  our  said  district  court,  at 
,  OMahoma,  this  day  of ,  19 — . 


Clerk  of  said  Court. 

Sec.  328.    Sheriff's  return  of  his  proceedings  under  the  order 
of  sale. 

State  of  Oklahoma, County,  ss. : 

In  the  obedience  of  the  command  of  the  order  of  sale  hereto 

annexed,  I  did,  on  the  day  of  ,  19 — ,  summon 

,  and  ,  three  disinterested  householders  of 

the  vicinity  and  of  said  county,  who  were  by  me  duly  sworn  to 
appraise  the  lands  and  tenements  therein  described;  and  after- 
ward, on  the  day  of  ,  19 — ,  said  appraisers  re- 
turned to  me,  under  their  hands  and  seals  that  they  did,  upon 
actual  view  of  the  premises,  estimate  and  appraise  the  real  value 

in  money  of  the  same  at  $ .     A  certified  copy  of  said 

appraisal  I  forthwith  deposited  in  the  office  of  the  clerk  of  tha 
district  court  of  said  county. 

And  on  the day  of ,  19 — ,  I  caused  to  be  adver- 
tised in  the ,  a  newspaper  printed  and  published  in 

County,  Oklahoma,  said  lands  and  tenements  to  be  sold  at  public 

sale  at  the  door  of  the  courthouse  in  said  county,  on  the  ■ 

day  of  ,  19 — ,  at  o'clock,  —  m.,  of  said  day,  and 

having  advertised  said  lands  and  tenements  for  more  than 


§  329  MER wine's  trial  of  title  to  land,  266 

days   previous  to  the   day  of  sale,  to-wit :  consecutive 

weeks,  and  in  pursuance  of  said  notice  I  did,  on  said  

day  of ,  19—,  at  the  time  and  place  above  mentioned,  pro- 
ceed to  offer  said  lands  and  tenements  at  public  auction  at  the 

door  of  said  courthouse,  and  then  and  there  came  ,  who 

bid  for  the  same  the  sum  of  $ ;  and  said  sum  being  more 

than  two-thirds  of  the  appraised  value  thereof,  and  said 

being  the  highest  and  the  best  bidder  therefor,  I  then  and  there 
publicly  sold  and  struck  off  said  lands  and  tenements  to  him  for 

said  sum  of  $ .  — "^     > 

Sheriff  of  said  County. 

Sec.  329.    Form  for  the  legal  notice  of  sale  of  real  estate 
under  attachment. 

LEGAL  NOTICE  OF  SALE  OF  REAL  ESTATE. 

Notice  is  hereby  given  that,  in  pursuance  of  an  order  of  sale 

issued  out  of  the  district  court  of County,  Oklahoma,  on 

the  day  of  ,  19 — ,  in  an  action  wherein  

was  plaintiff,  and was  defendant,  in  cause  number , 

directed  to  me,  the  undersigned  sheriff  of County,  Okla- 
homa, commanding  me  to  levy  upon  and  sell  as  upon  execution, 
the  following  described  premises,  to-wit:  (Here  describe  the 
same),  together  with  all  the  improvements  thereon  and  the 
appurtenances   thereunto  belonging,   to  satisfy   said  judgment 

and  costs,  the  same  having  been  appraised  in  the  sum  of  $ -, 

I  will,  on  the  day  of  ,  19—,  at  o'clock, 

—  m.,  of  said  day,  at  the  door  of  the  courthouse  in  the 

city  of ,  in  the  county  of ,  offer  for  sale  and  sell  to 

the  highest  bidder  for  cash,  said  real  estate  above  described, 
or  so  much  thereof  as  will  satisfy  said  claim  of  plaintiff  and 
costs. 

Witness  my  hand  this day  of ,  19 — . 


Sheriff  of  said  County. 


Attorneys  for  Plaintiff. 


267  REAIi   ESTATE    UNDER    ATTACHMENT.  §§  330,   331 

Sec.  330.    The  proof  of  publication  of  notice  of  sale. 

State  of  Oklahoma,  County,  ss.: 

,  of  lawful  age,  being  first  duly  sworn,  says  that  he  is 

the  of  the  ,  a  weekly  newspaper,  published  and 

printed  in  the  city  of  ,  in  the  county  of  ,  Okla- 
homa, and  of  general  circulation  in  said  county  and  state;  that 
said has  been  published  for  more  than  fifty-two  consecu- 
tive weeks  next  prior  to  the  date  on  which  the  notice  herein 
referred  to  was  published,  and  the  notice,  of  which  a  true  copy 
is  hereto   attached,   was  published  in   the  regular   and   entire 

edition  of  said ,  and  not  a  supplement  thereof,  once  each 

week  on  the  same  day  of  the  week,  for  weeks,  the  first 

publication  being  on  the  day  of  ,  19—,  and  the 

last  of  said  publications  being  on  the  day  of  , 

19—. • 

Subscribed  and  sworn  to  before  me  this day  of , 

19- 


TtTy  commission  expires .  Notary  Public. 

[Seal.] 


Sec.    331.     Appointment    of    appraisers    of   real    estate — The 
oath  of  the  appraisers,  and  appraisement. 

State  of  Oklahoma,  County,  ss. : 

j'o , and ,  Householders  of County, 

State  of  OklaJioma: 

Whereas,  on  the  day  of  ,  19—,  plaintiff  sued 

out  a  writ  of  attachment  in  the  action  of vs.  ,  on 

which  the  real  estate  hereinafter  described  was  seized  and  at- 
tached, said  action  being  filed  in  the  district  court  of  said • 

County,  Oklahoma,  said  real  estate  being  described  as  follows: 
(Here  insert  description  of  real  estate.) 

And,  Whereas,  afterward,  to-wit :  at  the  term,  19—, 

of  said  court,  such  proceedings  were  had  upon  such  petition, 

by  said  court,  that  the  sheriff  of  County  was  ordered  to 

sell  such  real  estate  as  upon  judgments  and  executions  at  law. 


§  332  merwine's  trial  of  title  to  land,  268 

Now,  Therefore,  according  to  the  statutes  in  such  cases 
made  and  provided,  I  do  hereby  call  and  appoint  you,  the  said 

,  and ,  an  inquest,  and  do  require  you,  on 

oath,  forthwith  to  view,  estimate  and  appraise  the  real  value  of 
said  premises,  in  money,  and  return  to  me  your  doings,  under 
your  hands  and  seals. 

Given  under  my  hand  this day  of ,  19 — . 


Sheriff  of  said  County. 

Personally   appeared   before   me,   ,   sheriff    of   

County,  aforesaid,  the  above  named , and 


appraisers  aforesaid,  who  are  judicious,  disinterested  household- 
ers of  the  vicinity  of  said  real  estate  and  citizens  of  such  county 
of  ,  and  were  personally  sworn  according  to  law  to  dis- 
charge the  duties  of  said  appointment. 
Witness  mv  hand  and  seal  this  day  of ,  19 — . 


Sheriff  of  said  County. 

To  ,  Sheriff  of  County,  Oklahoma: 

In  pursuance  of  the  foregoing  appointment,  we  have  pro- 
ceeded to  view  the  real  estate  and  premises  described  above,  and 
from  actual  view  of  the  same,  we  do  estimate  the  real  value 

thereof  in  money  to  be  $ ,  given  under  our  hands  this 

day  of ,  19—. 


Appraisers. 

Sec.  332.  Order  confirming  sale,  ordering  distribution  and 
the  execution  and  delivery  of  a  deed  to  the 
purchaser  at  Sheriff's  sale  of  attached  property. 

,  Plaintiff, 

vs.  No. . 

Defendant. 


On  motion  of  the  plaintiff  and  his  producing  the  return  of 
the  sheriff  of  the  sale  made  under  the  former  order  of  this  court, 


269  REAL    ESTATE    UNDER    ATTACHMENT.  §  333 

on  careful  examination  of  the  proceedings  of  the  said  sheriff, 
being  satisfied  that  the  same  have  been  had  in  all  respects  in 
conformity  to  law  and  the  order  of  this  court,  it  is  ordered  that 
the  said  proceedings  and  sale  be,  and  they  are,  hereby  approved 
and  confirmed,  and  it  is  further  ordered  that  the  sheriff  convey 
to  the  purchaser,  ,  by  deed,  according  to  law,  the  prop- 
erty so  sold. 

And  the  court,  coming  now  to  distribute  the  proceeds  of  said 

sale,  amounting  to  $ ,  it  is  ordered  that  the  sheriff,  out  of 

the  money  in  his  hands,  pay,  first,  the  costs  in  this  action,  taxed 

at  $ ;  secondly,  to  the  plaintiff, ,  the  balance  of  said 

$ ,  amounting  to  $ ,  to  be  applied  on  his  claim  of 

$ ,  with  interest  at %  per  annum,  from  the  


* 


day  of ,  19—.^ 

Judge  of  said  District  Court. 

*  See    Section    3'28    for    sheriff's    return. 


Sec.  333.    Form  for  sheriff's  deed  for  real  estate  sold  under 
attachment  proceedings. 

To  All  to  Whom  These  Presents  May  Come,  Greeting: 

Whereas,  on  the  day  of  ,  19 — ,  plain- 
tiff filed  his  certain  petition  and  then  and  there  commenced  a 

civil  action  in  the  district  court  of  County,  Oklahoma, 

against  ,  and  numbered  on  the  docket  of  said  court  as 

case  number  ,  praying,  among  other  things,  for  a  judg- 
ment against  said  ,  and  the  issuance  of  a  writ  of  attach- 
ment against  the  property  of  the  said ;  and. 

Whereas,  such  proceedings  were  had  in  said  action  that  said 

,  on  the day  of ,  19 — ,  caused  to  be  issued 

out  of  the  office  of  the  clerk  of  said  court  an  order  of  attachment 
directed  to  the  sheriff  of  County,  Oklahoma,  command- 
ing him  to  attach  the  goods,  chattels,  lands  and  tenements  of 
the  said  ,  in  the  said  county  of  ,  State  of  Okla- 
homa, which  said  order  of  attachment  duly  came  into  the  hands 
of  the  said  sheriff;  and, 

Whereas,  on  the day  of ,  19 — ,  the  said  sheriff 

of  said County,  Oklahoma,  attached  the  lands  and  tene- 


§  333                mebwine's  trial  of  title  to  land.                   270 
ments  hereinafter  described,  as  the  property  of  the  said , 


and  returned  his  said  action  upon  said  order  thereafter  to  the 
said  court ;  and, 

Whereas,  afterward,  to-wit :  on  the  day  of  , 

19 — ^  the  said obtained,  by  the  consideration  of  said  court 

at  the  ,  term  of  19 — ,  thereof,  a  judgment  against  said 

,  for  the  sum  of  $ ,  with  interest  and  costs;  and, 

Whereas,  afterward,  to-wit :  on  the  day  of  , 


19 — ,  the  said sued  out  an  order  of  sale  in  said  action, 

directed  to  the sheriff  of County,  Oklahoma,  com- 
manding him  to  expose  for  sale  the  lands  and  tenements  attached 
by  him  as  aforesaid,  to  satisfy  the  judgment  aforesaid,  and  said 
writ,  with  his  proceedings  thereon,  he  should  make  due  return; 
and, 

Whereas,  I,  the  said sheriff  as  aforesaid,  having  caused 

said  premises  to  be  appraised  and  a  copy  of  the  appraisement  to 
be  filed  in  the  office  of  the  clerk  of  said  court,  and  having  adver- 
tised the  time  and  place  of  the  sale  of  the  same  in  ,  a 

newspaper,  printed  and  of  general  circulation  in  said  county, 
for  more  than days  prior  to  the  day  of  sale,  and  other- 
wise complied  with  the  provisions  of  said  writ,  and  the  pro- 
visions of  the  statute  in  such  cases  made  and  provided,  did,  on 
the day  of ,  19 — ,  at  the door  of  the  court- 
house in  said  county,  at  o'clock,  —  m.,  of  said  day, 

expose  for  sale,  at  public  auction,  the  premises  hereinafter  de- 
scribed, and  thereupon having  bid  for  the  same  the  sum 

of  $ ,  which  sum  being  the  highest  and  best  bid  for  the 

same  and  more  than  two-thirds  the  appraised  value  thereof,  the 
said  premises  were  then  and  there  struck  off  to  him,  the  said 
,  the  purchaser  for  the  sum  of  $ ;  and, 

Whereas,  the  said  court,  at  its  term,  19 — ,  having 

examined  the  proceedings  of  the  said  sheriff,  aforesaid, 

in  the  premises  under  said  writ,  and  being  satisfied  that  the  sale 
aforesaid  has  been  made  in  all  respects  in  pursuance  thereof,  and 
in  accordance  with  the  provisions  and  the  requisites  of  the 
statute  regulating  such  sales,  should  be  confirmed,  and  that  the 


271  REAL    ESTATE    UNDER    ATTACHMENT.  §  333 

said  slierifi  of Countj^  should  convey  the  said  real  estate, 

by  deed  in  fee  simple,  to  the  purchaser, . 

Now,  Know  Ye,  that  I,  the  said sheriff  of  said  county 

of ,  by  virtue  of  said  judgment,  writ,  sale  and  confirma- 
tion, and  of  the  statutes  for  such  cases  made  and  provided,  and 
for  and  in  consideration  of  the  sum  of  $ ,  which  I  ac- 
knowledge to  have  received  from  ,  and  of  the  premises 

herein,   do   hereby   grant,  sell   and   convey  unto   him  the  said 

,  his  heirs  and  assigns  forever,  the  following  described 

real  estate,  to-wit :  (Here  describe  it),  together  with  all  the 
privileges  and  appurtenances  thereunto  belonging. 

To  Have  and  to  Hold  said  real  estate  unto  the  said , 

his  heirs  and  assigns  as  fully  and  completely  as  the  said 

sheriff  of  said  county,  by  virtue  of  said  judgment,  writs,  sale  and 
confirmation  and  of  the  statute  made  and  provided  in  such 
cases,  might  or  should  sell  and  convey  the  same. 

In  Witness  Whereof,   I  have  hereunto   set  my  hand  this 

day  of ,  19—.        , 

Sheriff  of County. 

State  of  Oklahoma,  County,  ss. : 

Before  me,  a  notary  public,  in  and  for  said  county 

and  State,  on  this day  of ,  19 — ,  personally  ap- 
peared   ,  to  me  known  to  be  the  identical  person  who  exe- 
cuted the  within  and  foregoing  instrument,  and  acknowledged 
to  me  that  he  executed  the  same  in  his  capacity  therein  stated, 
and  as  his  free  and  voluntary  act  and  deed  for  the  uses  and 
purposes  therein  set  forth. 


Mj  commission  expires  .  Notary  Public. 


CHAPTER   IX. 


THE   LAW  AND   PROCEDURE   IN   THE   FORECLOSURE 
OF  AN  ATTORNEY'S  LIEN  FOR  FEES. 


335. 

336. 
337. 


SECTION 

334.  The  attorney's  lien  on  personal 
property  and  judgment. 

May  retain  money  and  prop- 
erty to  enforce  lien,  when. 

Lien  may  be  released  by  bond. 

The  attorney's  lien  for  his 
services — The  statute. 

338.  Contingent  fee  authorized — The 

statute. 

339.  Liability   of  adverse  party   for 

fees  in  case  of  settlement — 
The  statute. 

340.  The  measure  of  ithe  amount  of 

recovery  in  case  settlement  is 

made  without  consent  of  the 

attorney. 
Decided  cases. 
The     effect     of     notice — "Lien 

daim"  indorsed  in  writing  on 

pleading  filed. 
The     settlement     without     the 

notice    to,    or    knowledge    of, 

the  attorney  having  a  lien. 
The    attorney    may    have    the 

cause  heard  to  determine  the 

amount  of  his  fee. 

345.  Eight    to    lien    when    services 

partly  performed  by  attor- 
ney. 

346.  Effect     of    agreement    not     to 

settle  or  compromise  without 
the  consent  of  the  attorney. 

Specific  performance  of  con- 
tract for  portion  of  land  to 
be  recovered  will  be  enforced. 

Should  the  suit  to  foreclose 
the  lien  be  a  separate  action 
or  by  cross-petition,  or  by 
intervening  petition  in  the 
original  action. 


341 
342 


343. 


344. 


347. 


348. 


SECTION 

349.  Contract     of     infant     or     next 

friend  to  employ  counsel, 
when. 

350.  The     statute     authorizing    the 

prosecution  or  defense  on 
behalf  of  an  infant. 

351.  History   of  the   law  as  to  the 

functions  of  the  next  friend 
and  guardian  ad  litem. 

352.  The  court  has  power  to  order 

payment  of  fee  of  guardian 
ad  litem. 

353.  The    next   friend   no    party   to 

the  action — Can  employ  coun- 
sel. 

354.  The  next  friend  and  guardian 

ad  litem  perform  the  same 
functions. 

355.  The    power    of    infant   or    next 

friend   to  employ  counsel. 

356.  The  employment  of  an  attorney 

is  a  necessary,  and  the  infant 
alone  may  make  the  contract 
— A  necessary  in  a  suit  for 
personal   injuries. 

357.  The   action   does   not  abate   on 

the  death  of  the  next  friend — • 
Counsel  fees  in  such  case 
should  be  paid. 

358.  The  attorney  for  an  infant  has 

a  lien  on  his  client's  cause 
of  action  for  his  fee. 

359.  The  infant,   or  next  friend,  or 

both,  can  make  contract  with 
an  attorney  for  a  contingent 
fee. 

360.  The  law  as  to  procedure  after 

judgment. 

272 


273  SALE   OF   REAL   ESTATE   FOR   ATTORNEY'S   FEES.    §§334,335 

SECTION  SECTION 

361.  Procedure    by    which    the    lien       3GG.  Form   for  the  appraisement  of 

of  an  attorney  for  his  services  the  real  estate. 

is  foreclosed  on  real  estate —  367.  Form    for    the    publication    of 

Form  for  the  petition.  the  notice  of  sale  of  the  real 

362.  Form  for  decree  of  court  fore-  estate  by  the  sheriff. 

closing   lien    of    attorney    for       368.  Form  for  proof  of  publication 
services.  of     notice     of     sale     of     real 

363.  Form  for  order  of  sale  directed  estate. 

from  the  clerk  to  the  sheriff.       309.   Form    for    the    sheriff's    return 

364.  Form  for  the  appraisement  of  of  his  proceedings  under  the 

the   real  estate.  writ. 

365.  The  form   for  the  oath  of  the       370.  Form  for  confirmation  of  sale. 

appraisers.  371.  Form  for  sheriff's  deed  to  the 

purchaser  of  said  real  estate. 

Sec.  334.    The  attorney's  lien  on  personal  property  and  judg- 
ment. 

^jQ  attorney  has  a  lien  for  a  general  balance  for  com- 
pensation in  and  for  each  case  upon: 

1.  Any  papers  belonging  to  his  client  which  have  come 
into  his  hands  in  the  course  of  his  professional  employment, 
in  the  case  for  which  the  lien  is  claimed. 

2.  Money  in  his  hands  belonging  to  his  client  in  the  case. 

3.  Money  due  his  client  in  the  hands  of  the  adverse  party, 
or  attorney  for  such  party,  in  an  action  or  proceeding  in 
which  the  attorney  claiming  the  lien  was  employed,  from 
the  time  of  giving  notice  in  writing  to  such  adverse  party, 
or  attorney  for  such  party,  if  the  money  is  in  the  possession 
or  under  the  control  of  such  attorney,  which  notice  must 
state  the  amount  claimed,  and  in  specific  terms,  for  what 
services. 

4.  After  judgment  in  any  court  of  record,  such  notice  may 
be  given,  and  the  lien  made  effective  against  the  judgment 
debtor,  by  entering  the  same  in  the  judgment  docket  oppo- 
site the  judgment.^ 

Sec.  335.    May  retain  money  and  property  to  enforce  lien, 
when. 
When  an  attorney  claims  to  be  entitled  to  a  lien  on  money 
or  property  so  held   for  his  attorney  fee,  he  may,  if  it  be 

1  Snyder,   261;    Wilson,  230. 


§  336  merwine's  trial  of  title  to  land.  274 

money,  retain  the  amount  of  such  fee,  but  must  pay  over  the 
balance  as  provided  by  statute  (Snyder,  271;  Wilson,  238). 
If  it  be  in  property,  he  may  retain  sufficient  to  reasonably 
secure  his  fee,  and  if  the  property  be  capable  of  divisions, 
must  deliver  all  in  excess  of  such  amount  as  provided  in  the 
statute.     (Snyder,  271;  Wilson,  238.)  = 

Sec.  336.    Lien  may  be  released  by  bond. 

It  is  provided  by  the  statute  that  any  person  interested 
may  release  such  lien  by  executing  a  bond  in  a  sum  double 
the  amount  claimed,  or  in  such  sum  as  may  be  fixed  by  a 
judge,  payable  to  the  attorney,  with  security  to  be  approved 
by  the  clerk  of  the  court,  conditioned  for  the  payment  of  the 
amount  finally  due  the  attorney  for  his  services,  which  amount 
may  be  ascertained  by  suit  on  the  bond.^ 

The  client  may  release  the  lien  of  the  attorney  at  any 
time  by  giving  bond  with  good  and  sufficient  securities,  resi- 
dents of  the  county,  to  be  approved  by  the  clerk  of  the 
district  court  in  which  the  attorney  resides,  or  in  the  county 
where  the  attorney  may  hold  the  property,  conditioned  to 
pay  to  the  attorney  the  amount  of  his  fees,  when  ascer- 
tained by  suit,  and  to  pay  all  costs  occasioned  by  suit  to 
ascertain  such  fees.  The  bond  must  be  deposited  with  the 
clerk  approving  the  same,  and  the  attorney  may  bring  suit 
on  such  bond  to  recover  his  fee,  and  must,  on  approval 
of  such  bond  by  the  district  clerk,  without  further  demand, 
deliver  the  money  or  property  held  as  security  for  his  fees 
to  the  client,  and  on  failure  so  to  do,  he  will  be  guilty  of  em- 
bezzlement and  disbarred.  A  client  giving  such  bond  may 
tender  to  the  attorney  any  amount  admitted  by  the  client 
to  be  owed  to  the  attorney,  as  his  fee,  and  if  the  attorney 
fail  to  accept  such  tender,  and  fail  to  recover  a  sum  greater 
than  the  amount  so  tendered,  he  will  be  required  to  pay  all 
costs  from  the  time  of  the  tender.* 

2  Snyder,  262;   Wilson,  239.  ■*  Snyder,   264;    Wilson,  240. 

3  Snyder,  263;    Wilson,   238. 


275     SALE  OF  REAL  ESTATE  FOR  ATTORNEY'S  FEES.  §§337,338 

This  bond  does  not  apply  to  statutes  giving  a  lien  on  causes 
of  action  which  can  be  settled  by  the  client  in  the  absence  of 
the  attorney.  The  latter  statute  (Snyder,  274;  Act  of  June, 
1909),  was  enacted  long  after  the  existence  of  the  former 
one. 

Sec.  337.    The  attorney's  lien  for  his  services— The  statute. 

From  the  commencement  of  actions  at  law  or  equity,  or 
from  the  filing  of  an  answer  containing  a  counterclaim,  the  at- 
torney, or  attorneys,  who  represent  the  party  in  whose  behalf 
such  pleading  is  filed,  is  entitled  to  a  lien  on  his  client's  cause 
of  action,  or  counterclaim,  and  the  same  will  attach  to  any 
verdict,  report,  decision,  finding  or  judgment  in  his  client's 
favor,  and  the  proceeds  thereof,  wherever  found,  will  be 
subject  to  such  lien,  and  no  settlement  between  the  parties 
without  the  approval  of  the  attorney,  shall  affect  or  destroy 
such  lien.  Such  lien  will  attach  from  and  after  such  attorney 
is  contracted  with,  provided  such  attorney  serves  notice  on 
the  defendant  or  defendants,  or  proposed  defendant,  or 
defendants,  in  which  he  is  required  to  set  forth  the  nature 
of  the  lien  he  claims,  and  the  extent  thereof,  or  from  and 
after  the  service  of  such  notice.  Such  notice  will  not  be 
necessary  provided  such  attorney  has  filed  such  pleading  in  a 
court  of  record,  and  indorsed  thereon  his  name,  together 
with  the  words,  "Lien  claim. "^ 

Sec.  338.     Contingent  fee  authorized— The  statute. 

The  statutes  of  this  State  provide  that  it  is  lawful  for 
attorneys  to  contract  for  a  percentage  or  portion  of  the 
proceeds  of  a  client's  cause  of  action,  or  claim,  not  to  exceed 
fifty  per  centum  of  the  net  amount  of  such  judgment  as  may 
be  recovered,  or  such  compromise  as  may  be  made  with  the 
consent  of  the  attorney,  whether  the  same  arise  ex  contractu 
or  ex  delicto,  and  no  compromise  or  settlement  entered  into 
without  such  attorney's  consent,  will  affect  or  abrogate  the 

5  Snyder,  274;  Act  of  June,  1909. 


§§339,340       merwine's  trial  of  title  to  land.  276 

lien  provided  for  in  the  paragraph  last  foregoing,  which  lien 
shall  apply  to  all  contracts  mentioned  in  this  paragraph.'^ 

Sec.  339.  Liability  of  adverse  party  for  fees  in  case  of  set- 
tlement— The  statute. 
Should  a  party  to  any  action  or  proposed  action,  whose 
interest  is  adverse  to  the  client  contracting  with  an  attorney, 
settle  or  compromise  a  cause  of  action  or  claim,  wherein  is 
involved  any  lien  as  mentioned  in  the  preceding  paragraph, 
Avithout  the  attorney  having  notice  and  an  opportunity  to  be 
present  at  such  settlement,  such  adverse  party  shall  there- 
upon become  liable  to  the  attorney  for  the  fee  due  him,  or 
to  become  due  him,  under  his  contract  of  employment,  and 
such  attorney  may  enforce  any  lien  provided  for  in  the  two 
preceding  paragraphs,  and  the  paragraph  following,  in  any 
court  of  competent  jurisdiction,  by  action  filed  within  one 
year  after  he  becomes  aware  of  such  compromise.'^ 

Sec.  340.    The  measure  of  the  amount  of  recovery  in  case 
settlement  is  made  without  the  consent  of  the 

attorney. 
Should  the  amount  of  the  attorney's  fee  be  agreed  upon 
in  a  contract  of  employment,  then  such  attorney's  lien  and 
cause  of  action  against  such  adverse  party  will  be  for  the 
amount  so  agreed  upon.  If  the  fee  be  not  fixed  by  the  con- 
tract, the  lien  and  cause  of  action,  as  aforesaid,  w^ill  then  be 
for  a  reasonable  amount  for  not  only  the  services  actually 
rendered  by  such  attorney,  but  for  a  sum  which  it  might  be 
reasonably  supposed  w^ould  have  been  earned  by  him,  had  he 
been  permitted  to  complete  his  contract;  and  such  attorney 
may  present,  upon  the  hearing,  the  facts  essential  to  estab- 
lish the  merits  of  the  cause  in  which  he  was  employed. 
Should  the  contract  be  for  a  contingent  fee  and  specify  the 
amount  for  which  the  action  is  to  be  filed,  then  the  lien  and 

e  Snyder,  275;  Act  of  June,  1909.  7  Snyder,  276;  Act  of  June,  1909. 


277 


SALE   OP  REAL   ESTATE   FOR   ATTORNEY'S   FEES.  §  341 


cause  of  action  as  aforesaid,  will  be  for  the  percentage  of 
the  amount  to  be  sued  for  as  mentioned  in  such  contract.* 

Sec.  341.    Decided  cases. 

In  attempting  to  get  a  construction  of  these  provisions  of 
the  statute,  the  cases  decided  by  the  courts  of  last  resort  in 
other  States  lend  no  aid.  As  was  said  by  one  of  said  courts : 
"The  decided  cases  are  in  a  mass  of  hopeless  confusion,  and 
are  confusing  instead  of  helpful."  The  reason  for  this  is, 
that,  so  far,  the  writer  has  been  unable  to  find  any  other 
State  with  a  similar  statutory  provision.  Indeed,  there  are 
many  well  considered  cases  holding  that  where  the  claim 
has  not  passed  into  a  judgment,  the  client  may  settle  his 
cause,  and  his  attorney,  whose  services  may  have  forced  a 
settlement,  will  be  without  other  remedy  than  suit  against 
his  client  for  a  personal  judgment.  Some  of  these  cases  are 
based  upon  the  common  law  doctrine  of  nonassignability  of 
causes  of  action  for  injuries  to  persons,  and  others,  upon  the 
peculiar  wording  of  the  particular  statute  under  which  the 
charging  lien  is  claimed.^ 

8  Snyder,  277 ;   Act  of  June,  1909.  niencement    of    an    action,    or    the 

9  Miller  v.  Jersey,  G6  N.  J.  Eq.  filing  of  a  pleading  containing  a 
11,  57  Atl.  730;  Handall  v.  Van  counterclaim,  the  attorney  who  ap- 
w'agoner,  115  N.'  Y.  527,  22  N.  E.  pears  for  the  party  has  a  lien  on 
561,  12  Sm.  St.  828;  North,  etc.,  v.  his  client's  cause  of  action  or 
Ackley  171  111.  100,  49  N.  E.  22;  counterclaim,  which  attaches  to  any 
Anderson  v.  Itasca,  86  Minn.  480,  verdict,  report,  decision  or  judg- 
91  X.  W.  12;  LaMotte  v.  Washing-  ment  in  his  client's  favor,  and  the 
ton,  47  Am.'  Eep.  268;  Keith  v.  proceeds  thereof,  into  whosoever 
Beaver,  43  Am.  Rep.  (Wis.)  725;  hands  they  may  come,  cannot  be 
Allwar'd  v.  Lamarde,  29  Wis.  502;  affected  by  any  settlement  between 
Howard  v.  Osceola,  22  Wis.  454;  the  parties  before  or  after  judgment. 
McCourtney  v.  McGavock,  23  Wis.  In  all  suits  in  equity  and  in  all 
622.  As  an  illustration,  a  copy  of  actions  or  proposed  actions  at  law, 
the  Missouri  statute  on  this  subject  whether  arising  ex  contractu  or 
is  here  given:  "The  compensation  ex  delicto,  it  shall  be  lawful  for  an 
of  an  attorney  or  counselor  for  his  attorney  at  law,  either  before  suit 
services  is  governed  by  agreement,  or  action  is  brought,  to  contract 
express  or  implied,  which  is  not  with  his  client  for  legal  services 
restrained  by  law.     From  the  com-  rendered,    or    to    be    rendered    him. 


§  342  merwine's  trial  of  title  to  land.  278 

The  reading  of  this  statute  (^Missouri  Statute,  quoted  in 
note),  at  first  blush,  appears  to  thoroughly  protect  the 
attorney  in  his  lien,  but,  in  reality,  gives  him  a  claim  on  the 
proceeds  of  settlement  only.  In  other  words,  if  a  defendant 
could  induce  an  ignorant  client  who  has  a  valid  cause  of 
action  by  which  he  would  be  able  to  recover  a  large  sum 
of  money,  to  believe  he  had  no  cause  of  action,  and  could 
induce  a  settlement  for  a  very  small  sum,  the  attorney  could 
claim  only  his  share  of  the  settlement.  A  careful  analysis 
of  the  statute  of  our  State  is  broader  than  this.  It  leaves  no 
room  for  such  claim.  It  bears  all  the  marks  of  having  been 
prepared  by  a  lawyer  of  learning  and  wide  experience,  after 
having  read  all  the  decisions  and  statutes  of  other  States 
on  the  subject,  thereby  excluding  from  the  statute  of  this 
State  the  defects  in  the  statutes  of  other  States. 

Sec.  342.    The   effect   of  notice — "Lien   claim"   indorsed  in 
writing  on  pleading  filed. 
The    statutes    in    other    States    provide    only    for    written 
notice  of  the  attorney's  lien   claim  for  services  to  be  served 


for  a  certain  portion  or  percentage  centage  thereof,  which  the  client 
of  the  proceeds  of  any  settlement  of  may  have  against  the  defendant,  or 
his  client's  claim,  or  cause  of  action,  defendants,  and  cannot  be  affected 
either  before  the  institution  of  the  by  any  settlement  between  the  par- 
suit  or  action,  or  any  stage  after  ties  either  before  suit  or  action  is 
the  institution  of  the  suit  or  action,  brought,  or  before  or  after  judgment 
and  upon  notice  in  ^^riting  by  the  therein,  and  any  defendant,  or  de- 
attorney  wlio  has  made  such  agree-  fendants,  or  proposed  detendant  or 
ment  with  his  client  served  upon  defendants,  who  shall,  after  notice 
the  defendant  or  defendants,  or  pro-  served  as  herein  provided,  in  any 
posed  defendant  or  defendants,  that  manner,  settle  any  claim,  suit,  cause 
he  has  such  an  agreement  with  his  of  action  or  action  at  law,  with 
client,  stating  therein  the  interest  such  attorney's  client,  before  or 
he  has  in  such  claim  or  cause  of  after  litigation  is  instituted  thereon, 
action,  then  said  agreement  shall  without  first  procuring  the  written 
operate  from  the  date  of  service  of  consent  of  such  attorney,  shall  be 
such  notice,  as  a  lien  upon  the  liable  to  such  attorney  for  such 
claim  or  cause  of  action,  and  the  attorney's  lien,  as  aforesaid,  upon 
proceeds  of  any  settlement  thereof,  the  proceeds  of  such  settlement,  as 
for   such  attorney's  portion  or   per-  per  the  contract  existing  as  herein- 


279       SALE  OF  REAL  ESTATE  FOR  ATTORNEY'S  FEES.     §  343 

on  the  defendants.  This  is  not  made  a  public  record,  and 
innocent  purchasers  of  the  property  might  not  be  bound  by 
the  lien.  In  the  statutes  of  this  State,  an  attorney  claiming 
such  lien,  can  indorse  in  writing  on  the  pleading  filed,  the 
words,  "Lien  claim,"  together  with  his  name,  designating 
for  whom  he  appears  as  attorney,  and  there  is  thus  made  a 
public  record  of  the  lien  of  the  attorney  of  which  the  world 
will  have  a  constructive  notice,  that  it  is  a  matter  of  record, 
with  the  same  force  as  any  other  recorded  instrument  of  lien 
or  conveyance. 

Sec.  343.    The  settlement  without  the  notice  to  or  knowledge 
of  the  attorney  having  a  lien. 

The  skill  of  the  lawyer  who  prepared  this  law  for  the 
legislature  of  this  State  is  to  be  again  observed  in  that  it 
nowhere  provides  that  neither  the  client  nor  the  defendant 
may  settle  the  cause  without  the  consent  of  the  attorney 
claiming  the  lien.  Indeed,  both  the  client  and  defendant,  or 
defendants,  may  settle  the  cause  without  giving  the  attorney 
notice  or  an  opportunity  to  be  present  at  such  settlement. 
But  if  such  settlement  is  so  made,  the  attorney's  lien  still  at- 
taches. By  analogy,  it  attaches  in  the  same  manner  as  a 
lien  of  a  mortgage  attaches  to  real  estate.  The  owner  of 
real  estate  on  which  there  is  a  mortgage  may  sell  his  real 
estate,  but  the  lien  still  attaches;  so  the  client  may  settle  his 
cause  of  action,  and  the  adverse  party  may  compromise  with 
the  client,  without  the  consent  of  the  attorney  who  has  a 
lieu  on  the  cause  of  action,  but  the  lien  of  the  attorney  on 
the  cause  of  action  is  in  no  wise  impaired. 

In  other  States  the  courts  have  held  that  a  client  may 
settle  his  cause  without  the  consent  of  his  counsel,  but  the 
attorney's  lien  attaches  to  the  proceeds  of  the  settlement.^* 
But  the  statute  in  this  State  evidently  was  intended  to  cover 
this  weak  point  in  the  statutes  of  other  States,  as  is  disclosed 

above  provided,  between  such  attor-  lo  Fisher  v.   Railroad,    173   X.   Y. 

ney  and   his   client."      Copied   from  500,  66  X.  E.  395;  Waite  v.  Atcher- 

O'Connor    v.    St.    Louis,    97    S.    W.  son,   103  S.  W.  60. 
(Mo.)    150. 


§  344  MER wine's  trial  of  title  to  land.  280 

in  the  next  paragraph.  The  statute  under  consideration 
makes  not  only  the  client  who  settles  liable  in  any  personal 
action  for  attorney's  fee,  or  lien,  but  every  defendant  who 
settles  with  him.^^ 

Sec.  344.    The  attorney  may  have  the  cause  heard  to  deter- 
,  mine  the  amount  of  his  fee. 

The  statute  of  this  State  contains  the  wise  provision  that, 
after  the  amount  of  attorney's  fee  is  agreed  upon  by  his 
contract  of  employment,  then  the  amount  of  his  lien  and 
cause  of  action  will  be  the  amount  named  in  the  contract. 
In  other  words,  if  a  client  in  his  contract  by  which  he  em- 
ploys the  attorney,  agrees  with  the  attorney  that  his  fee 
shall  be  one  thousand  dollars,  then,  if  the  defendant  and 
client  settle,  the  amount  of  the  attorney's  lien  will  be  for 
one  thousand  dollars ;  and  the  attorney  can  then  file  his 
action  to  foreclose  and  sell  the  property  on  which  his  lien 
attached,  and  secure  a  personal  judgment  against  the  client 
and  adverse  party  for  the  same.  The  statute  is  still  broader 
and  more  comprehensive  than  this.  By  its  terms  it  provides 
that  if  the  fee  be  not  fixed  by  the  contract,  the  lien  and 
cause  of  action  shall  be  a  reasonable  amount  for  not  only 
the  services  actually  rendered  by  such  attorney,  but  for  a 
sum  which  it  might  be  reasonably  supposed  would  have  been 
earned  by  him,  had  he  been  permitted  to  complete  his 
contract,  and  such  attorney,  upon  the  hearing  of  the  action 
in  which  he  seeks  to  foreclose  his  lien,  or  any  action  to 
secure  a  personal  judgment  against  the  client  and  adverse 
party,  may  present  the  facts  essential  to  establish  the  merits 
of  the  cause  in  which  he  was  employed.  And  if  the  contract 
of  employment  of  the  attorney  be  for  a  contingent  fee, 
specifying  the  amount  for  which  the  action  for  client  would 
be  brought,  then  the  attorney's  lien  and  cause  of  action  in 


11  Flint     V.     HuWiard,     66     Pac.       ing  the  settlement  were  personally 
(Cal.)    44G,    in   which    it    was    held       liable, 
that  all  parties  concerned  in  mak-  * 


281     SALE  OF  REAL  EST-^TE  FOR  ATTORNEY'S  FEES.  §§345,346 

the  suit  of  the  attorney  against  the  client  or  adverse  party, 
or  both,  may  be  for  the  amount  to  be  sued  for  in  the  orig- 
inal action  as  mentioned  in  said  contract.^- 

Sec.  345.  Right  to  lien  when  services  partly  performed  by 
attorney. 

Upon  this  subject,  one  court  has  said : 

"We  think,  however,  that  if  a  disability  occurs  after  such 
contract  for  services  has  been  partly  performed,  this  does  not 
prevent  the  disabled  party,  if  the  breach  of  the  contract 
was  made  through  no  fault  of  his  own,  but  by  an  act  of 
God,  or  other  unavoidable  casualty,  from  recovering  the 
quantum  meruit  for  the  reasonable  value  of  the  services 
rendered  prior  to  the  disability.  This  is  the  modern  idea, 
and  we  think  it  founded  in  right  and  justice.  "^^ 

Sec.  346.  Effect  of  agreement  not  to  settle  or  compromise 
suit  without  the  consent  of  the  attorney. 

The  statutes  of  this  State  authorize  the  attorney  to  make  a 
contract  with  the  client  for  a  sum  not  greater  than  one-half 
of  the  recovery.  The  contract  is  thus  authorized  by  law, 
it  would  seem  that  it  would  not  be  against  public  policy  to 
agree  in  the  contract  not  to  settle  without  the  consent  of 
the  attorney.  The  courts  in  another  State  have  frequently 
held  that  a  contract  between  an  attorney  and  his  client  con- 
taining this  stipulation  not  to  settle  the  case  without  the 
consent  of  the  attorney,  is  not  void  as  against  public  policy. 
We  here  quote  the  language  of  the  Supreme  Court  of  that 
State : 

"A  contract  by  which  attorneys  are  employed  to  recover 
land  by  suit,  and  stipulating  that  they  are  to  have  the  one- 
half  of  the  land  recovered,   and  in  which  the   client  agrees 


12  Snyder,  277;  Act  of  June,  1900.  MeCumber,    17    R.    T.    274,    24    Atl. 

13  Lewis    V.    Omaha,    114    N.    W.  464,    16   L.   R.   A.   858;    Johnson  v. 
(Neb.)    280;   Coe   v.   Smith,   4   Ind.  Board,  12  N.  W.  237,  78  Pac.  43. 
79,    38    Am.    Dec.    618;    Parker    v. 


§  346  MERWINE  'S   TRIAL    OF    TITLE   TO   LAND  282 

not  to  compromise  the  suit  or  claim  without  their  consent  or 
approval,  may,  or  may  not  be,  unlawful,  according  to  the 
circumstances  of  the  case.  And  in  this  case  where  the  client 
compromised  with  her  adversary,  after  suit  was  brought, 
and  in  which  as  a  result  of  the  compromise,  defendant  is 
Avithholding  from  plaintiffs  under  a  deed  from  the  client, 
the  one-half  of  the  land  to  which  they  would  have  been 
entitled  had  not  that  compromise  been  made,  it  is  held,  that 
the  contract  not  to  compromise  without  their  approval  is 
lawful."^-* 

It  would  seem  then,  upon  principle,  that  where  there  is  no 
fraud  upon  the  part  of  the  attorney,  a  contract  of  this  kind 
in  this  State  is  not  void  as  against  public  policy;  for  the 
statute  itself  uses  the  language  that  no  settlem,ent  made  tvith 
the  client  ivithout  the  consent  of  the  attorney  ivill  destroy 
the  attorney's  lien.  Indeed,  the  act  itself  is  passed  for  the 
express  purpose  of  preventing  the  client  from  settling  the 
case,  without  the  consent  of  the  attorney.  A  careful  reading 
of  the  statutes  of  this  State  upon  the  subject  of  protecting 
the  attorney's  fees  in  case  of  a  settlement  of  the  case  by  the 
client  without  the  consent  of  the  attorney,  discloses  that  the 
legislature  of  this  State  has  gone  further  in  this  direction 
than  any  other  State  of  the  Union.  The  statute  is  broader  in 
that  direction,  than  the  statute  of  the  State  whose  Supreme 
Court  laid  down  the  proposition  above  quoted.  The  Supreme 
Court  of  that  State  again  held  that  such  a  contract  is  not 
void.^^ 

Courts  of  last  resort  in  many  of  the  States  of  the  Union 
have  held  that  a  contract  between  attorney  and  client,  con- 
taining the  provision  that  the  client  cannot  settle  the  cause 
without  the  consent  of  the  attorney  is  void ;  ^^  but  it  is  to  be 
observed  that  none  of  the  statutes  in  any  of  the  States  in 


14  Lipscomb  v.  Adams,  193  Mo.  le  Snyder  v.  DeForest,  S2  X.  E. 
530,  91  S.  W.   1,046.  742;    Huber  v.  Johnson,  64  Am.  St. 

15  Wright  V.  Kansas,  126  S.  W.  456;  Davis  v.  Webber,  45  L.  R.  A. 
616;  Springfield  v.  Hobart,  9»  Mo.  196,  15  Ohio,  167,  117  111.  100,  125 
App.  227,  68   S.  W.  942  Am.    St.    694,    13   Ohio,    167. 


283     S.U^E  OF  REAL  ESTATE  FOR  ATTORNEY'S  FEES.  §§  347,  348 

which  these  decisions  were  rendered  are  as  broad  in  this 
respect  as  the  statutes  of  this  State.  Aside  from  this,  the 
trend  of  the  modern  cases  on  this  subject  is  in  the  direction 
of  the  protection  of  the  client  and  the  attorney  both,  by- 
holding  that  such  a  provision  in  the  contract  is  not  void  as 
against  public  policy.  The  rule  that  courts  will  look  with 
favor  upon  a  compromise  and  settlement  made  by  the 
parties  to  a  suit,  to  prevent  the  vexation  and  expense  of 
further  litigation,  only  applies  where  all  the  rights  and 
interests  of  all  of  the  parties  concerned,  both  legal  and 
equitable,  have  been  respected,  and  in  good  faith  observed.^^ 

Sec.   347.    Specific  performance  of   contract  for  portion  of 
land  to  be  recovered,  will  be  enforced. 

An  agreement  by  counsel  in  writing  with  a  client,  whereby 
the  attorney  shall  have  a  half  interest  in  certain  lands  to  be 
recovered  by  suit,  will  be  specifically  performed.  And  where 
the  client,  after  the  action  is  begun,  settles  with  the  adverse 
party  without  suit,  by  the  execution  and  delivery  of  a  deed 
to  the  real  estate,  the  attorney  will,  by  proper  action,  be 
given  specific  performance.^^  The  reasonableness  or  unrea- 
sonableness of  such  contract  is  not  to  be  determined  by  the 
value  of  the  services  actually  rendered.  The  client,  having 
prevented  the  full  performance  of  the  contract,  cannot  be 
heard  to  say  that  the  attorney  may  not  recover  the  quantum 
meruit  of  his  services.^^ 

Sec.  348.    Should  the  suit  to  foreclose  the  lien  be  a  separate 
action   or   by   cross-petition,    or   by   intervening 
petition  in  the  original  action. 
There    should   be    but   little    difficulty   in    determining   the 

procedure  in  an  action  of  this  kind.     If  the  client  who  set- 

17  Potter  V.  Ajax,  Hi  Pac.  (Utah),  of   the   case   without   satisfying  the 

999;    Weeks   v.    Circuit    Judges,    73  demands  of   his   attorneys." 

Mich.  256,  41  N.  W.  269.     One  court  is  Topeka  v.   Root,   56   Kan.    187, 

lias    put    the    proposition    in    this  42  Pac.  715. 

form:    "A  party  should  not  be  per-  1 9  Topeka   v.   Root,    56   Kan.    187, 

mitted  to  run  away  v/ith  the  fruits  42  Pac.   715. 


§  348  merwine's  trial  of  title  to  land,  284 

ties  with  the  adverse  party,  and  the  adverse  party  are  respon- 
sible, they  can,  without  doubt,  be  made  to  pay  a  personal 
judgment.  Then  the  action  should  be  by  the  attorney  against 
the  client  and  adverse  party.  If  the  attorney  desires  to 
enforce  his  lien,  then  he  will  bring  his  action  against  the 
client  and  adverse  party  to  foreclose  his  lien  just  as  he 
would  foreclose  a  mortgage,  mechanic's  or  judgment  lien, 
and  there  is  but  one  cause  of  action  in  such  suit.-" 

There  is  more  difficulty,  however,  in  the  question  as  to 
whether  the  attorney  may  intervene  in  the  original  action, 
or  whether  he  is  required  to  bring  a  separate  action.  There 
is  authority  in  other  States  under  statutes  very  much  unlike 
our  statute,  holding  that  the  attorney  should  set  up  his  claim 
by  intervention  in  the  original  action.-^  Where  the  parties 
to  the  action  settle  it  without  the  knowledge  or  consent  of 
plaintiff's  attorney,  he  may  either  institute  an  independent 
action  to  recover  his  fee,  or  proceed  against  him  by  pleading 
filed  in  the  original  action  if  the  same  be  pending.^-  And 
where  he  petitions  to  recover  his  fee  in  the  same  action,  he 
need  not  make  plaintiff  a  party.'^  He  may  have  the  case 
reinstated  and  heard  in  the  name  of  the  plaintiff  to  deter- 
mine the  amount  of  his  recovery.-* 

The  cases  here  cited  show  that  the  statutes,  under  which 
the  lien  is  claimed,  are  so  different  that  it  confuses  the 
practitioner  seeking  to  enforce  a  lien  in  our  State,  if  he  should 
attempt  to  follow  the  decisions  upon  the  subject  in  other 
States.  By  giving  careful  attention  to  the  statute  of  our 
State  on  the  subject,  there  need  be  no  confusion  as  to  the 


20  Coombs  V.  Knox,  72  Pac  22  Proctor  v.  Tye,  96  S,  W.  612, 
(Mont.)   Ml;   Elliot  v.  Leopard,  52  .29   Ky.   Law  Rep.   804, 

Cal.  355 ;  Flint  v.  Hubbard,  66  Pac.  23  lUd. 

(Cal.)    446.  24Merdricke   v.    Rank,    82    N.    E. 

21  Farry  v.  Davidson,  24  Kan.  (Ind.)  119;  Jackson  v.  Stearns,  84 
418;  Lewis  v.  Omaha,  114  N.  W.  Pac.  798;  Waite  v.  Atcherson,  10.3 
(Neb.)  280;  Smith  v.  Railroad,  60  S.  W.  (Mo.)  60;  Potter  v.  Ajax, 
N.      W.      (la.)      244;      Kansas     v.  57  Pac.  270. 

Thacher,  17  Kan.  92;  Jones  v.  Duff, 
95  N.  W.    (Neb.)    1. 


285  SALE   OF   REAL   ESTATE   FOR   ATTORNEY'S   PEES.  §  348 

procedure.     It  is  to  be  observed,   as  stated  above,  that  the 
statute  in  no  wise  prevents,   or   attempts  to  prohibit  a  set- 
tlement.   It  is  provided  by  general  statute  how  cases  may  be 
settled.     An  action  may  be  dismissed  without  prejudice  to  a 
future  action  by  the  plaintiff  before  the  final  submission  of 
the  case  to  the  jury,  or  to  the  court,  where  the  trial  is  by 
the  court.-^   The  plaintiff  may,  in  the  beginning  of  the  cause, 
and  without  order  of  court,  dismiss  any  civil  action  brought 
by   him    at   any   time    before    a   petition    of   intervention    or 
answer,  praying  for  affirmative  relief  against  him,  is  filed  in 
the  action.     A  plaintiff  may,  at  any  time  before  the  trial  is 
commenced,   on  payment  of  the  costs,  without   any  order  of 
court,   dismiss   his   action,   after   the   filing   of   a   petition   of 
intervention,    or   answer   praying   for    affirmative   relief,    but 
such  dismissal  will  not  prejudice  the  right  of  the  intervenor 
or  defendant,  to  proceed  with  the   action.     Any   defendant, 
or  intervenor,  may,  in  like  manner,  dismiss  his  action  against 
the  plaintiff,  without  order  of  court,  at  any  time,  before  the 
trial  is  begun,  by  payment  of  the  costs,  on  the  claim  filed 
by  him.    All  parties  to  a  civil  action  may,  at  any  time,  before 
the    trial,    without    an    order    of   court,    on   payment    of    the 
costs,   by   agreement,   dismiss  the   action.     Such   dismissal  is 
required  to  be  in  writing,  and  to  be  signed  by  the  parties, 
and  their  attorneys,  and  is  required  to  be  filed  with  the  clerk 
of  the  district  court,  the  judge  or  clerk  of  the  probate  court, 
or  deposited  where  the  action  is  pending,  who  must  note  the 
fact   on   the   proper   record:    Provided,    that    such    dismissal 
must   be   held   to    be    without    prejudice,    unless    the    words, 
"With  prejudice"  are  expressed  therein.-*' 

Thus,  it  is  seen  that  by  the  statute,  a  defendant  may  dis- 
miss the  action  by  stipulation  in  writing,  signed  by  him,  and 
filed  with  the  clerk.  The  action  being  thus  dismissed,  it  is 
quite  difficult  to  see  how  the  attorney  could  intervene  therein 
by  cross-petition.  Aside  from  this,  the  language  of  the 
statute  itself  seems  to  indicate  the  necessity   of  a  separate 

25  Snyder,  5,918;  Wilson,  4,375.  2a  Snyder,  5,919;  Wilson,  5,486. 


§349 


merwine's  trial  of  title  to  land.  286 


action  by  the  attorney  to  enforce  his  lien;  for  it  says,  "And 
such  attorney  may  enforce  any  lien  provided  for  by  this 
act,  in  any  court  of  competent  jurisdiction,  by  action  filed 
within  one  year  after  he  becomes  aware  of  such  com- 
promise." "^ 

The  safer  practice  is  to  bring  a  separate  action,  for  there 
can  be  no  error  in  so  doing,  and,  on  the  other  hand,  in  view 
of  the  statute  authorizing  the  defendant  to  dismiss  his  action, 
it  might  be  error  to  file  an  action  by  an  intervening  or  cross- 
petition  in  the  case.  These  views,  to  the  writer,  seem  founded 
on  principal  and  logic.  The  cases  in  other  jurisdictions  bear 
out  these  views.-® 

Sec.  349.  Contract  of  infant  or  next  friend  to  employ  coun- 
sel, when. 
The  question  as  to  whether  an  infant,  or  next  friend,  or 
both,  has  the  power  to  employ  an  attorney,  and  bind  his 
estate  for  services  rendered,  or  to  be  rendered  in  the  re- 
covery of  property  for  the  infant,  is  a  question  now  before 
the  courts,  and  the  practitioner  in  eastern  Oklahoma.  A 
large  part  of  the  lands  in  that  part  of  the  State,  was  allotted 
to  infants.  There,  buyers  and  speculators  have  secured  deeds 
and  possession  thereunder  of  many  of  their  allotments.  The 
infant,  in  many  cases,  has  no  guardian,  and  no  means  of 
employing  counsel  for  its  recovery,  except  to  employ  counsel 
by  agreement  to  pay  him  as  his  fee,  a  portion  of  the  lands 
to  be  recovered.  The  courts  are  confronted  with  a  situation 
that  ought  to  call  for  the  protection  of  the  infant.  The  law 
authorizes  the  next  friend  to  bring  an  action  on  behalf  of 
the  infant  to  recover  his  lands.  Having  authorized  the  next 
friend  to  bring  the  action,  the  next  friend  ought  to  be  em- 
powered to  employ  counsel  and  to  bind  the  estate  of  the 
infant  out  of  the  recovery  for  the  payment  of  the  fee.     Even 

27  Snyder,  276;  Act  of  June,  1909.  Pac.       (Mont.)       641;      Taylor      v. 

28Kansas  V.  Thachcr.  17  Kan.  92;  St.   Louis,   97   S.   W,    155,    198   Mo. 

Farry    v.    Davidson,    44    Kan.    377,  750. 
24   Pac.   419;    Coombs   v.  Knox,   72 


287     SALE  OF  REAL  ESTATE  FOR  ATTORNEY'S  FEES.  §§  350,  351 

if  the  question  of  the  power  of  the  next  friend  or  of  the 
infant,  should  be  questioned,  or  even  doubted,  a  wise  public 
policy  demands  the  courts  of  last  resort  of  this  State  to  cast 
the  doubt  in  favor  of  the  right  and  power  of  either  the  in- 
fant or  next  friend  to  employ  counsel  to  recover  his  property. 
Any  other  decision  would  result  in  permitting  fraud  to 
retain  the  fruits  of  its  cunning  and  deceit.  In  order  to  get 
at  the  expression  and  reason  of  the  courts  on  this  subject, 
great  liberty  has  been  taken  in  the  follovvdng  portion  of  this 
chapter  in  the  use  of  language  of  the  opinions  of  the  de- 
cided cases;  and  we  here  repeat  what  has  already  been  said 
at  another  place  in  this  work  on  this  subject. 

Sec.  350.     The  statute  authorizing  the  prosecution  or  defense 
on  behalf  of  an  infant. 

The  action  of  an  infant  must  be  brought  by  his  guardian 
or  next  friend.  "When  the  action  is  brought  by  his  next 
friend,  the  court  has  power  to  dismiss  it,  if  it  is  not  for  the 
benefit  of  the  infant,  or  substitute  the  guardian  of  the  infant, 
or  any  person  as  the  next  friend.'® 

Sec.  351.    History  of  the  law  as  to  the  functions  of  the  next 
friend  and  guardian  ad  litem. 

It  has  been  a  rule  of  law  from  time  immemorial  that  the 
next  friend  can  bring  an  action  for  an  infant.  In  the  time 
of  Lord  Thurlow  and  Lord  Hardwick,  in  England,  the  costs 
of  the  action  and  fee  of  counsel,  were  allowed  as  costs  in 
an  action  for  an  infant.  The  former  laid  down  the  rule  that 
no  mistake  or  misapprehension  would  be  sufficient  to  charge 
the  f/rochein  ami  with  the  costs,  and  that  anyone  who  would 
stand  forward  in  that  character  on  behalf  of  the  infant 
ought  to  be  encouraged  to  every  possible  extent,  which  he 
could  be  supposed  to  intend  beneficial  to  the  infant.     And 

29  Snyder,    5.563;    Wilson,    4,229;     Kansas,     4,459      (1901),     identical; 
Nebraska,  1,032   (1907),  identical. 


§  351  merwine's  trial  op  title  to  land.  288 

the  latter  laid  down  the  rule  that  if  it  appears  that  the  next 
friend  was  sufficiently  warranted  to  bring  the  suit,  and  it 
was  brought  and  continued  in  a  reasonable  manner,  without 
laches,  then  the  infant  ought  to  reimburse  him.^** 

It  has  always  been  the  practice  in  English  courts  to  bring 
the  infant  into  court  and  ask  permission  to  have  a  guardian 
ad  litem  appointed  for  him.^^  The  highest  tribunal  in  our 
land  has  declared  the  English  practice  its  practice  in  the 
prosecution  or  defense  of  an  infant  by  the  next  friend  or 
guardian  ad  litemJ^  And  this  rule  of  practice  has  been 
adopted  by  the  various  States  of  the  Union.  In  order  to 
carry  out  the  practice  it  is  necessary  that  the  guardian 
ad  litem  be  empowered  to  secure  and  retain  the  services  of 
an  attorney,  and  the  attorney's  compensation  will  come  under 
the  allowance  by  the  court  out  of  the  funds  placed  in  the 
hands  of  the  court,  or  under  its  control,  by  the  services  of 
such  attorney.^^ 

The  general  guardian  of  an  infant  is  required  to  appear  for 
and  represent  his  ward  in  all  legal  suits  and  proceedings, 
unless  another  person  is  appointed  for  that  purpose  as  guardian 
or  next  friend.^* 

It  is  further  provided  by  statute  in  the  chapter  relating 
to  the  general  guardian  of  minors,  that  nothing  contained 
therein  shall  affect  or  impair  the  power  of  any  court  to 
defend  the  interests  of  any  minor  interested  in  any  suit  or 
matter  pending  therein.^^ 

soWhittaker  v.   Marian,   1    Cox's  32  Marshall,  J.,  in  United   States 

Case,    285;    Tainer   v.    Ivie,   2   Ves.  v.  Eich,  8  Pet.  128. 

Jr.    R.    466;     Pierce    v.    Pierce,    9  33  Stewart  v.  Hoare,  2  Bro.  C.  C. 

Ves.  R.  547.'  663;  Fearns  v.  Young,  10  Ves.  184; 

siLoyd  V.  Carew,  L.  Eq.  Ca.  Abr.  Crump  v.  Baker,  18  Ves.  285;  Union 

260;    Johnson  v.  Pfeil,  9  Ves.   357;  v.  Van  Eensaeler,  4  Paige,  84. 

Lushington  v.   Sewell,   6  Madd.  28;  34  Snyder.    5,490;    Wilson,    1,832; 

Egremont  v.  Egremont,  2  DeG.,  M.  California,  1,769    (Kerr), 

and  G.  730.  ss  Snyder,  5,484;  Wilson,  1,826. 


289       SALE  OP  REAL  ESTATE  FOR  ATTORNEY'S  FEES.     §  352 

Sec.  352.  The  court  has  power  to  order  payment  of  fee  of 
guardian  ad  litem. 

It  is  now,  and  has  been,  the  universal  rule  of  the  courts,  to 
allow  a  fee  to  be  paid  to  the  counsel  for  the  guardian  ad 
litem,  for  his  services  in  protecting  the  interests  of  the  infant, 
out  of  any  fund  in  the  control  of  the  court  and  placed  there 
by  the  services  of  the  attorney  for  the  guardian  ad  litem. 

It  cannot  be  seriously  controverted  that  a  guardian  ad 
JUcm,  appointed  by  the  court  for  an  infant,  is  entitled  to 
compensation.  If  the  law  were  otherwise,  the  rights  of  in- 
fants would  be  at  the  mercy  of  any  one  who  saw  fit  to  evade 
them.  The  statutes  which  make  provision  for  the  appoint- 
ment of  these  officers,  imply  that  they  should  be  compensated, 
and  the  proper  court  should  fix  their  compensation,  as  the 
one  which  is  a  witness  of  their  services.  That  proposition 
cannot  be  gainsaid,  and  has  been  uniformly  so  held.^'' 

Another  court  of  last  resort  has  held  that  where  the  at- 
torney appears  for  the  guardian  ad  litem,  the  relation  of  the 
attorney  to  the  infant  is  the  same  as  it  would  have  been  to 
an  adult,  and  it  further  held  that  this  doctrine  did  not  at  all 
conflict  with  the  cases  holding  that  the  infant  cannot  appear 
or  plead  by  attorney.  The  ground  is  that  after  the  guardian 
ad  litem  has  been  appointed,  he  aids  the  infant  in  selecting 
counsel  and  conducting  the  defense.     That  it  is  the  employ- 


36  Walton   V.   Yore,   58   Mo.  App.  442;  Boring  v.  Jude,  53  S.  W.  763. 

565;     Nagel    v.    Schulling,    14    Mo.  A  suit  was  brought  in  the  name  of 

App.  576;  In  re  Matthews,  27  Hun,  certain   minors   by   request  of  their 

254 ;    Gott    V.    Cook,    7    Paige,    52 ;  guardian.    The  minors  were  the  real 

Herbaugh  v.  Vance,  5  Lea   (Tenn.),  parties  in  interest.     It  did  not  ap- 

113;     Wilbur    v.    Wilbur,    138    111.  pear   that  there   was   any   intention 

446;    McCue    v.    O'Harra,    5    Radf.  on  the  part  of  the  attorneys  to  look 

(N.  Y.)    336;   Halloway  v.  Mcllhen-  to   the   guardian   for   compensation, 

ney,     17     Tex.     657;     Robinson     v.  nor,  on  the  part  of  the  guardian,  to 

Fidelity,   US.  W.   106;    Stewart  v.  become    personally    liable    therefor. 

Hoare,    2    Bro.    C.    C.    663;    Fearns  Held,  that  a  court  of  equity  would 

V.   Young,    10   Ves.    184;   -Crump   v.  charge    the    estate    of    the    minors 

Baker,   18  Ves.   285;    Union  v.  Van  with   such   compensation.      Fillmore 

Rensaeler,    4   Paige,    84;    American  v.  Wells,  10  Col.  228,  15  Pac.  343. 
V.  Davis,  67  S.  W.  864,  108  Tenn. 


§§353,354       MER wine's  trial  of  title  to  land. 


290 


ment  of  the  infant  is  evident  from  the  fact  that  the  infant, 
and  not  the  guardian,  pays  such  attorney.  The  legal  services 
are,  in  such  case,  necessaries.^^ 

Sec.  353.  The  next  friend  no  party  to  the  action — Can  em- 
ploy counsel. 
The  relation  of  prochcin  ami  to  the  action  and  his  duties 
are  simple  and  well  defined.  He  is  no  party  to  the  suit  in  the 
technical  sense  of  the  term,  although  he  is  responsible  for 
the  costs.  He  is  considered  as  an  officer  of  the  court,  espe- 
cially appointed  by  it,  to  look  after  the  interest  of  the  infant 
in  whose  behalf  he  acts.  One  of  the  duties  required  of  him 
is  that  of  employing  an  attorney  to  conduct  the  suit,  as  he 
is  not  supposed  to  be  a  person  learned  in  the  law,  and  his 
intervention  is,  by  no  means,  to  dispense  with  the  services 
of  an  attorney  to  carry  on  the  proceedings  and  to  try  the 
case,  if  necessary.^^ 

Sec.  354.  The  next  friend  and  guardian  ad  litem  perform 
the  same  functions. 

A  guardian  ad  litem,  appointed  by  the  court  to  protect  the 
rights  of  an  infant  defendant,  should  file  a  general  denial, 
and,  in  case  the  proper  protection  of  the  rights  of  his  ward 
require  it,  he  may  take  such  affirmative  action  by  petition 
or  cross-petition  and  other  pleading,  as  may  be  necessary 
for  that  purpose. 

At  common  law,  infants  were  required  to  sue  by  guardian 
ad  litem,  but,  by  the  statute  of  Westminster  they  were  authorized 
to  sue  by  next  friend  in  all  actions,  and  the  remedy  was  held 
to  be  cumulative,  leaving  it  optional  for  suit  to  be  brought 
by  the  guardian  or  next  friend.  In  respect  to  the  represen- 
tation of  an  infant  plaintiff  there  would  seem  to  be  little,  if 
any,  difference  between  the  functions  of  a  guardian  ad  litem 
and  of  a  next  friend.     It  may  be  well  said  that  a  guardian 

37  Alexander    v.     Frarey,    9    Ind.  38  BaltimQre     v.     FitzPatrick,     L6 

484;  Doe  v.  Brown,  S  Blackf.  443.        .  Md.   C24. 


291        SALE  OP  REAL  ESTATE  FOR  ATTORNEY'S  FEES.     §  355 

ad  litem,  appointed  for  an  infant  defendant,  in  addition  to 
filing  a  general  denial,  would  not  only  have  the  power,  but 
it  would  be  his  duty  to  take  affirmative  action,  and  prosecute 
by  cross-petition,  if  it  should  be  found  necessary,  and  it  was 
for  the  protection  of  the  interests  of  his  ward.^'^ 

We  here  quote  from  a  standard  work  on  this  subject: 
"A  next  friend  is  one,  who  though  not  properly  appointed 
guardian,  represents  in  a  suit  a  party  thereto  w4io  is  not 
sui  generis,  as  an  infant.  The  term  is  synonymous  with 
prochein  ami.  There  is  but  little  substantial  difference 
between  the  office  of  next  friend  and  that  of  guardian 
ad  litem.  The  chief  distinction  is  that  the  former  is  usually 
applied  to  one  who  appears  on  behalf  of  a  plaintiff,  Avhile  the 
corresponding  representation  of  a  defendant  is  usually  de- 
nominated guardian  ad  litem. ' '  **^ 

Sec.  355.    The  power   of  infant  or  next  friend  to   employ 
counsel. 

The  cases  upon  which  the  above  authorities  are  predicated, 
establish  the  proposition  that  the  functions  of  the  guardian 
ad  litem  and  the  next  friend  are  the  same.  The  courts,  from 
time  immemorial,  have  had  inherent  power  to  fix  and  pay 
counsel's  fees  for  the  guardian  ad  litem  out  of  any  estate  or 
fund  under  its  control.  The  conclusion-  necessarily  follows 
that  the  next  friend,  or  infant  and  next  friend,  have  the 
power  to  bind  the  estate  for  the  payment  of  counsel  fees 
for  the  recovery  of  an  estate,  or  of  money  for  the  infant, 
in  the  absence  of  the  appointment  of  a  general  guardian  by 
the  probate  court.  When  there  is  a  duly  appointed  guardian 
for  the  infant,  then  such  guardian  should  bring  the  action 
for  the  infant,  and  there  is  no  need  of  a  guardian  or  next 

39  Scliade  v.  Connor,  120  X.  W.  describing  him  as  such,  has  pre- 
(Xeb.,  1910)  1,013;  Grosovoskv  v.  vailed  in  this  State,  still  he  is  in 
Goldenberg,    86    ]Minn.    378.  all  respects,  the  next  friend  of  the 

40  14  Enc.  Plead,  and  Prac.  907.  infant."  Simpson  v.  Alexander,  6 
"Although  the  practice  of  allowing  Coldw.    (Tenn.)    619. 

an   infant  to  sue  by  his  guardian, 


§  356  merwine's  trial  of  title  to  land.  292 

friend  to  institute  the  action.  But  in  cases  where  the  general 
guardian  fails  or  refuses  to  bring  the  suit,  then  the  action 
should  be  brought  by  the  next  friend,  and  the  fee  of  his 
counsel  should  be  paid  out  of  any  fund  recovered  for  the 
infant  by  the  attorney  employed  by  the  next  friend.  In- 
deed, if  the  next  friend  did  not  have  the  power  to  employ 
counsel  for  the  infant,  the  next  friend  could  not  bring  the 
action.  The  statute  would  be  a  vain  and  idle  thing  if  the 
next  friend  could  not  employ  counsel.  The  language  of  the 
statute  authorizes  a  suit  by  the  next  friend,  even  when  there 
is  a  general  guardian.  It  says:  "The  action  of  an  infant 
must  be  brought  by  his  guardian  or  next  friend.  When  the 
action  is  brought  by  his  next  friend,  the  court  has  power  to 
dismiss  it,  or  substitute  the  guardian  of  the  infant. ' '  *^ 

Sec.  356.  The  employment  of  an  attorney  is  a  necessary,  and 
the  infant  alone  may  make  the  contract — A 
"necessary"  in  an  action  for  personal  injuries. 

Usually,  an  infant  who  has  an  estate  has  a  guardian,  who 
may,  and  should,  engage  and  pay  counsel  where  the  interests 
of  the  infant  committed  to  his  care,  require  it.  When  an 
infant  has  no  guardian,  but  has  rights  involved  in  litigation, 


41  Snyder,    6,563 ;    Wilson,    4,223 ;  acts     fairly,     and     does    not     make 

Kansas,     4,459      (1901),     identical;  unreasonable  demands  for  credit  or 

Nebraska,    1,032    (1907),    identical;  allowance,     he     should     be     allowed 

Munson  v.  Washburn,  83  Am.  Dec.  compensation  for  services,  and  when 

(Conn.)     151.     Attorneys   who   con-  necessary,    attorney's    fees    paid    in 

tract    with    a    minor,    and    perform  the    hearing    of    his    account;     and 

services    under    that    contract,    are  where  such  guardian  ad  litem,  who 

entitled    to   a   reasonable  compensa-  is  an   attorney,   employs   counsel   to 

tion;  and  the  minor's  administrator  assist  him  in  conducting  the  litiga- 

may    set    up    the    contract    in    his  tions    of    his   wards,    he    should    be 

answer   to    a    suit    brought   by    the  allowed  reasonable  compensation  for 

heirs  to  compel  an  accounting,  and  such  counsel  for  the  performance  of 

may    show,    if    the    contract    is    in-  such  services  only  as  such  guardian, 

valid,  that  the  sum  paid  the  attor-  himself,    could   not   properly   be   ex- 

neys   is   a  reasonable   compensation.  pected   to    perform.      Richardson   v. 

Hamlon  v.  Wheeler,  25  S.  W.  (Tex.)  Tyson,  86  N.  W.    (Wis.)    250. 
822.      Where   a   guardian   ad   litem 


293       SALE  OF  REAL  ESTATE  FOR  ATTORNEY'S  FEES.      §  356 

and  a  lawyer  has  espoused  the  cause  of  such  litigation,  and 
as  a  result  of  the  litigation  an  estate  has  been  secured  to  the 
infant,  it  is  just  and  proper  that  on  the  principle  on  which 
the  infant  is  held  liable  for  necessaries,  that  the  reasonable 
fees  of  such  counsel  should  be  paid  out  of  the  estate  thus 
obtained.  If  the  infant  had  had  a  guardian  who  had  em- 
ployed and  paid  counsel,  he  would  have  been  entitled  to 
reimbursement  out  of  the  estate  of  the  ward,  for  the  reason- 
able fees  so  paid,  to  be  allowed  on  settlement.  Should  the 
fact  that  the  infant  had  no  guardian  until  the  acquisition 
of  the  estate  involved  in  litigation,  in  which  the  services  of  a 
counsel  were  rendered,  made  one  necessary,  deprive  counsel 
of  just  compensation?  Both  the  principles  of  public  policy 
and  the  protection  of  infants,  lead  us  to  answer  this  question 
in  the  negative.  It  will  operate  for  the  benefit  of  infants 
to  allow  a  just  compensation  for  counsel  fees  and  expendi- 
tures in  their  behalf,  in  maintaining  their  rights  in  litigation, 
which  result  in  securing  to  them  the  means  of  supplying  their 
wants.^- 

It  was  decided  in  another  well  considered  case  that  if  a 
suit  be  brought  by  an  infant  through  her  father,  as  her 
next  friend,  and  she  confers  with  counsel,  and  appears  as  a 
witness,  and  provides  for  the  prosecution  of  the  suit,  a 
promise  may  be  implied  by  her,  to  pay  an  attorney's  fee  for 

42  Epperson  v.  Xugent,  57  Miss.  band,  with  whom  the  suit  was 
45,  34  Am.  Rep.  435;  Trafts  v.  settled  by  marriage,  if  it  appears 
Carr,  60  L.  R.  A.  (R.  L.)  128,  96  that  the  services  of  the  attorney 
Am.  St.  929;  Askey  v.  Williams,  were  absolutely  requisite  for  the 
5  L.  R.  A.  176;  Kilgore  v.  Rich,  personal  relief  and  protection  and 
12  L.  R.  A.  (Me.)  860;  Gay  v.  support  of  the  minor.  A  minor 
Ballou,  21  Am.  Dec.  158.  "An  at-  may  make  a  necessary  contract  for 
torney  may  recover  of  husband  and  the  commencement  and  prosecution 
wife,  fees  for  his  services  and  of  a  civil  suit,  where,  under  peculiar 
moneys  expended  by  him  in  com-  circumstances  of  the  case,  it  is  the 
mencing  and  prosecuting  a  suit  in  only  means  by  which  he  can  pro- 
behalf  of  the  wife  alone,  when  she  cure  the  absolute  necessaries  which 
was  a  femme  sole  and  a  minor,  by  he  requires."  Munson  v.  Wash- 
an  action  for  breach  of  promise  of  burn,  31  Conn.  303,  83  Am.  Dec. 
marriage,  against   her   present  bus-  151. 


§356  merwine's  trul  of  title  to  land.  294 

conducting  the  suit,  and  such  attorney  fees  may  be  recovered 
against  the  infant  where  the  services  rendered  by  the  counsel 
effected  the  infant's  personal  relief,  protection  or  liberty,  and 
when  they  are  necessary  and  financially  beneficial  to  the 
infant's  estate.*^ 

The  cases  which  have  been  most  carefully  considered  by 
the  courts  hold  as  given  in  the  foregoing  paragraph,  but 
there  are  many  decisions  holding  that  neither  the  infant 
nor  the  next  friend  can  bind  the  estate  of  the  infant  for  the 
payment  of  his  counsel  fees.  A  carefal  reading  of  all  decided 
cases  on  this  subject  has  impressed  the  writer  that  the  modern 
trend  of  the  decisions  is  in  the  direction  of  enabling  either 
the  minor,  or  next  friend,  or  both,  to  employ  counsel  to 
protect  the  estate  of  the  infant,  and  to  bind  the  infant's 
estate  for  the  payment  of  such  fees,  especially,  in  all  cases 
where  there  is  no  general  guardian.  The  cases  holding  that 
the  infant  or  next  friend,  or  both,  have  such  right,  seem  to 
be  the  more  logical,  and  are  founded  on  the  necessities  of  the 
situation.  Were  any  other  rule  to  be  adopted  by  the  Supreme 
Court  of  this  State,  it  would  leave  the  infants  and  their  lands, 
helpless  in  the  hands  of  the  land  speculator.  In  the  note 
below  will  be  found  a  list  of  cases  holding  that  the  infant's 
estate  cannot  be  bound  for  the  payment  of  counsel  fees  for 
services  rendered  on  his  behalf.** 

The  Supreme  Court  of  Kansas,  in  a  very  late  case,  said :  "The 
appellant's  contention  is  that  the  plaintiff's  contract  with  a 
minor,  or  with  the  next  friend  of  the  minor  is  void.  Whether 
an  express  contract  as  to  the  attorney's  compensation  was  en- 

43  Crafts   V.    Karr,    24   R.   I.    721,  "  McKee  v.  Hunt,  77  Pac.   (Col.) 

53  Atl.  275;  Thrall  v.  Wright,  3S  1,104;  Hunt  v.  Maldanado,  89  Cal. 
Ves.  494;  Kilgore  v.  Rich,  12  G3fi,  27  Pac.  56;  Morse  v.  Hinckley, 
L.   R.    A.   860;    Barber    v.   Hibbard,  124  Cal.    154,  56  Pac.   896;    Cobbey 

54  N.  H.  539,  20  Am.  Rep.  160;  v.  Buchanan,  48  Neb.  391,  67  N.  W. 
Hammaker  v.  Bank,  95  Wis.  359,  167;  Phelps  v.  Worcester,  11  X.  H. 
70  N.  W.  295;  Thompson  v.  In-  51;  Engelbert  v.  Troxell,  40  Neb. 
surance,    136   U.    S.    287;    Henry   v.  145,  42  Am.   St.  665. 

Henry,    103   Ala.   582;    American  v. 
Davis,  108  Tenn.  442,  67  S.  W.  864. 


295     SALE  OF  REAL  ESTATE  FOR  ATTORNEY'S  FEES.  §§  357-359 

forceable  as  to  its  terms,  the  services  ha\dng  been  rendered  and 
having  been  beneficial  to  the  minor,  a  liability  exists  to  pay  for 
them  on  the  ground  that  they  are  necessaries. ' '  *^ 

Sec.  357.  The  action  does  not  abate  on  the  death  of  the  next 
friend — Counsel  fees  in  such  case  should  be  paid. 
An  action  by  an  infant  by  a  guardian  ad  litem  does  not 
abate  by  the  infant  coming  of  age  pending  it,  and  he  may 
without  any  amendment  of  the  infant  elect  to  proceed  with 
the  action,  and  his  election  is  sufficiently  shown  by  his  re- 
ceiving the  fruits  of  the  judgment  entered  after  he  became 
of  age.*° 

Sec.  358.    The  attorney  for  an  infant  has  a  lien  on  his  client's 
cause  of  action  for  his  fee. 

If  the  next  friend,  or  the  infant,  or  both,  has  the  power 
to  employ  counsel  to  recover  money  or  property,  it  follows, 
as  a  necessary  sequence,  that  the  attorney  so  employed  has 
his  lien  on  the  client's  cause  of  action,  which  the  client 
cannot  impair  in  any  way,  by  settlement,  provided  the 
attorney  at  the  time  of  filing  the  petition,  or  answer  con- 
taining a  counterclaim,  serves  notice  on  the  defendant,  or 
defendants,  or  proposed  defendant  or  defendants,  setting 
forth  the  nature  of  the  lien  he  claims,  and  the  extent  thereof, 
or  has  indorsed  on  such  pleading,  in  writing,  his  name,  to- 
gether with  the  words,  "Lien  claim. "^^ 

Sec.  359.    The  infant,  or  next  friend,  or  both,  can  make  con- 
tract with  an  attorney  for  a  contingent  fee. 

Since  the  infant,  or  next  friend,  or  both,  in  certain  in- 
stances, may  make  a  contract  for  the  employment  of  counsel, 

45  Sutton     V.     Heiyle,     115     Pac.  refused   to   pay   such   fees,   and   the 

Kansas,  May  Term,  1911),  516.  matter  of  the  fee  was  referred  to  a 

4«  Connor  v.  Ashley,  35  S.  E.  546.  master  for  hearing,  in  which  refer- 
In  this  latter  case,  the  attorney  for  ence    the    master    allowed    and    the 
the    infants    rendered     services    for  court  confirmed  the  payment  of  the 
them    in    an    estate    in   which    they  fee. 
were    interested,    and    the    executor  *' Snyder,  274;  Act  of  June,  1909. 


§§360,361        merwine's  trial  of  title  to  land.  296 

to  recover  property  for  him,  he,  or  they,  may,  under  the 
statute  authorizing  the  employment  of  counsel  for  a  con- 
tingent fee,  agree  to  give  the  attorney  not  more  than  half  of 
the  recovery.*® 

Sec.  360.    The  law  as  to  procedure  after  judgment. 

In  the  chapter  herein  on  sale  of  real  estate  under  an 
execution,  there  will  be  found  a  full  statement  of  the  sale 
of  real  estate  by  an  order  of  sale  and  also  under  the  writ 
venditioni  exponas,  and  also  a  statement  of  the  law  as  to 
appraisement  of  the  real  estate  and  as  to  the  procedure  from 
the  time  of  the  order  of  sale  to  the  delivery  of  the  deed  to 
the  purchaser. 

Sec.  361.  Procedure  by  which  the  lien  of  an  attorney  for  his 
services  is  foreclosed  on  real  estate — Form  for 
the  petition. 

District  Court,  County,  State  of  Oklahoma. 

and  ,  Plaintiffs, 

vs.  No. . 

and  ,  Defendants. 

PETITION. 

Come  now  plaintiffs,  and  for  their  cause  of  action  herein, 
allege  and  state : 

1.    That  on  the day  of ,  19—,  they  entered  into 

an  agreement  with  one  ,  who  was  the  of  the  de- 
fendant,   ,  and  also  with ,  who  was  then  a  minor, 

which  agreement  was  in  writing,  and  provided,  in  substance, 
that  said  plaintiffs,  as  attorneys  at  law,  were  employed  by  the 

said  and  to  bring  an  action  in  the  courts  to 

recover  all  lands  theretofore  conveyed  by  the  said  ,  dur- 
ing his  minority,  and  to  quiet  title  to  all  of  the  lands  allotted  to 
said  minor  as  a  citizen  of  the  Nation,  and  for 

48  Snyder,  275;  Act  of  June,  1909.  *' 


297 


SALE  OF  REAL  ESTATE  FOR  ATTORNEY'S  FEES.      §  361 


their  services  as  such  attorneys  under  said  employment,  plain- 
tiffs were  to  be  given  and  they  were  to  accept  the  following 
described  real  estate,  to-wit:  (Here  describe  it.)  Said  agree- 
ment further  provided  that  in  case  nothing  was  recovered  for 
said  minor,  then  said  attorneys  were  to  make  no  charge  for 

their  legal  services,  and  that  the  said of  said  infant  was 

to  be  the  guardian  and  next  friend  for  said  minor  in  an  action 
brought  for  the  purposes  mentioned  in  said  written  contract,  a 
copy  of  which  contract  is  hereto  attached,  and  made  a  part 
hereof,  and  marked  "Exhibit  A." 

2.    That,  in  pursuance  of  said  employment,  on  the day 

of ,  19—,  the  plaintiffs,  who  were  then  and  are  now,  regu- 
lar licensed  attorneys,  authorized  to  practice  law  in  said  county 

and  State,  filed  a  petition  in  the  district  court  of County, 

Oklahoma,   in  which  ,    an   infant,   by  ,   his   next 

friend,  was  plaintiff,  and  the  above  named  and  , 

and  one ,  were  defendants,  alleging  in  substance,  that  the 

said was  the and  next  friend  of  said ;  that 

said  was  a  citizen  of  the  Nation,  of  the 

blood,  and  was  on  the day  of ,  by  the  Dawes  Com- 
mission, placed  on  the  enrollment  records  of  said  Nation,  as  of 

the  age  of years,  and  as  such  citizen,  there  was  allotted 

to  him  the  follo^dng  described  real  estate  in County, 

Oklahoma,  to-wit :  (Here  describe  real  estate)  ;  that  on  the 

day  of ,  19 — ,  said  minor,  and  his  said  wife,  by  warranty 

deed,  attempted  to  convey  to  the  above  named  defendants, • 

and  ,  the  following  described  real  estate,  to-wit:   (Here 

describe  it),  receiving  therefor  the  sum  of  $ ,  and  certain 

personal  property,  to-wit:  (Here  describe  same);  that  said 
money  had  been  spent  and  none  of  it  is  in  his  possession,  but 
he  still  had  said  personal  property  (describing  it),  and  would 
restore  the  same  to  the  grantees,  if  the  court  should  so  order; 
that  said  deed  was  made  without  any  order  of  court,  and  when 

said was  a  minor,  and  said  deed  was  void,  but  operated 

as  a  cloud  upon  his  said  real  estate  to  his  great  and  irreparable 

damage  and  injury;  that  on  the day  of  ,  19 — ,  a 

deed  purporting  to  have  been  made  by  said  infant  to  one , 


§  361  MEE wine's  trial  op  title  to  land.  298 

conveying  (Here  describe  real  estate  conveyed)  was  filed  and 
recorded  in  the  records  of  the  deeds  of  said  county  and  State, 
but  that  said  deed  had  never  been  signed  by  said  infant,  or  by 
anyone  by  him  authorized  to  do  so;  that  said  deed  was  also  a 
cloud  upon  his  title  thereto  to  his  great  and  irreparable  damage 

and  injury ;  that  said and have  received  the  rents 

and  profits    from   said   real   estate,   amounting  to   the  sum   of 

$ ,  and  that  said  infant  was  in  the  possession  of  said  real 

estate. 

Said  petition  prayed  that  the  deeds  made  to  said  and 

^  and  to  ,  be  canceled  and  held  for  naught;  that 

said  parties,  and  each  of  them,  be  forever  barred  from  asserting 
any  claim  to  the  real  estate  first  herein  described ;  that  said  real 
estate  be  quieted  in  said  infant,  and  that  the  court  grant  him 
such  other  and  further  relief  as  equity  and  the  nature  of  the 
case  miglit  require,  a  copy  of  which  petition,  with  all  of  the 
indorsements  thereon,  is  hereto  attached,  marked  "Exhibit  B" 
and  made  a  part  hereof. 

3.  That  in  said  cause,  number  ,   aforesaid,  the  said 

and  ,  entered  their  appearance  by  filing  a  de- 
murrer to  said  petition,  which  demurrer  alleged  that  said  petition 
did  not  state  a  cause  of  action  against  them,  a  true  copy  of 
which  demurrer  is  hereto  attached,  marked  "Exliibit  C"  and 
made  a  part  hereof. 

4.  That  on  the day  of ,  19 — ,  plaintiffs  as  such 

attorneys,   procured   from  said  court   and  filed  in  said   cause, 

number  ,  an  order,  in  writing,  suggesting  that,  since  the 

bringing  of  said  action,  the  and  next  friend  had  died, 

and  in  the  meantime,  said  minor  had  reached  his  majority,  and 
further  ordering  said  cause  to  proceed  in  the  name  of  the  said 

,  a  true  copy  of  said  order  is  hereto  attached,  marked 

"Exhibit  D"  and  made  a  part  hereof. 

5.  That  on  the day  of ,  19 — ,  in  the  absence  of 

his  said  attorneys,  and  without  their  knowledge  or  consent,  and 
without  turning  over  to  plaintiffs  the  compensation  agreed  to 
be  given  by  him  to  them,  the  said entered  into  a  stipu- 
lation in  writing  with  the  said and  — ,  for  the  settle- 


299       SALE  OF  REAL  ESTATE  FOR  ATTORNEY'S  FEES.     §  361 

ment  and  dismissal  of  said  action  number  ,  a  copy  of 

which  is  hereto  attached,  marked  "Exhibit  E"  and  made  a  part 
hereof,  which  said  stipulation  stated  that  he  had  received  from 

the  said ,  the  sum  of  $ ,  in  full  settlement  of  said 

cause,  and  that  the  clerk  of  said  court  be  directed  to  enter  a 
dismissal  thereof  and  charge  the  costs  to  plaintiff  therein. 

6.  That  before  filing  said  stipulation   of  dismissal  of  said 

cause  and  after  the  said became  of  age  and  prior  to  the 

order   of  said   court,   authorizing  and  directing  said  cause  to 

proceed  in  the  name  of  said ,  the  said  authorized 

and  directed  said  attorneys,  plaintiffs  herein,  to  proceed  with 
said  action  in  his  name  and  for  his  benefit. 

7.  That  at  the  time  of  the  filing  of  said  petition,  the  said 
plaintiffs,  as  such  attorneys  for  said  plaintiff  in  said  action, 
indorsed  on  said  petition  in  writing,  the  f ollowng :  ' '  Lien  Claim, 

and Attorneys  for  Plaintiff, ' '  and  the  same  was  so 

indorsed  thereon  at  the  time  said  suit  was  so  settled  and  dis- 
missed, and  said  indorsement  of  said  lien  claim  appeared  on 
said  petition  at  the  time  of  the  settlement  of  said  action  and  at 
the  time  of  the  conveyance  of  said  real  estate  hereinafter 
alleg-ed. 

8.  That  at  the  time  said  settlement  had  been  made  as  afore- 
said, the  said  and  his  wife,  ,  by  deed  of  general 

warranty,  executed,  acknowledged  and  delivered,  conveyed  (Here 

describe  real  estate  conveyed),  of  said  real  estate  to  one . 

Said  deed  was  so  made  under  the  direction  of  the  said  

as  a  part  of  the  settlement  of  said  case  aforesaid,  and  said  deed 

was  taken  and  accepted  by  the  said ,  with  knowledge  of 

the  lien  of  said  attornej^s  in  said  action  on  said  land. 

9.  That  on  the day  of ,  19 — ,  the  said  , 

by  deed  of  quitclaim,  conveyed  the  real  estate  last  aforesaid,  to 
the  defendant,  ,  who  took  said  deed  with  notice  of  plain- 
tiffs' lien  thereon. 

10.  That  on  the day  of ,  19—,  the  said , 

by  deed  of  quitclaim,  conveyed  the  real  estate  last  aforesaid,  to 

the  said ,  who  took  said  deed  with  notice  of  plaintiffs'  lien 

thereon. 


§  361  merwine's  trial  op  title  to  land.  300 

11.  That  said  portion  of  said  real  estate  which  said  plaintiffs, 
under  said  contract,  were  to  receive  for  their  said  services  were 

then,  and  are  now,  of  the  value  of  $ ,  and  their  lien  on 

said  (Here  describe  real  estate)  has  become  absolute,  and  plain- 
tiff is  entitled  to  a  foreclosure  thereof. 

12.  That  plaintiffs  do  not  know  the  full  Christian  names  of 

the  defendants, ,  and  ,  and  therefore  said 

parties  are  sued  by  the  initial  letters  of  their  respective  names. 

"Wherefore,  plaintiffs  pray  that  this  court  either  decree  them 
the  fee  simple  title  to  said  (Here  describe  real  estate),  freed 
from  any  claim  of  any  of  said  defendants  herein,  or  that  the 
court  hear  and  determine  the  value  of  said  (Here  describe  real 
estate  again)  of  said  real  estate,  and  give  plaintiffs  judgment  for 
the  value  so  to  be  found,  and  order  and  decree  that  said  (Here 
describe  real  estate),  or  such  portion  thereof  as  this  court  may 
determine  necessary,  be  sold,  freed  from  the  claims  of  any  de- 
fendant herein,  to  satisfy  said  judgment  and  lien  of  plaintiffs; 
that  said  defendants,  and  each  of  them,  be  compelled  to  come 
into  this  cause  by  appropriate  pleading  and  set  forth  the  in- 
terest they  may  have  in  said  real  estate,  or  be  forever  barred 
from  asserting  the  same  thereto,  and  that  plaintiffs  may  have 
such  other  and  further  relief  to  which  they  may  be  entitled. 


Attorney  for  Plaintiffs. 

EXHIBIT  A.* 
This    agreement,    made    and    entered   into    by    and   between 
,  a  minor,  and  ,  ,  and  next  friend  of  said 


minor,  party  of  the  first  part,  and and ,  attorneys 

at  law,  party  of  the  second  part,  Witnesseth, 

The  party  of  the  first  part  employs  the  said  party  of  the 
second  part  as  their  attorneys  to  recover  all  lands  heretofore 

conveyed  by  the  said during  his  minority,  and  to  quiet 

title  to  all  the  allotment  of  said  minor,  and  for  their  services 
the  said  party  of  the  first  part  agrees  to  give  and  said  second 
party  agrees  to  accept  the  following  described  real  estate,  to-wit : 
(Here  describe  it.) 

*  Here   attach    other    exhibits. 


301       SALE  OF  REAL  ESTATE  FOR  ATTORNEY'S  FEES.      §  362 

The  party  of  the  second  part  is  to  make  no  charge  for  their 
professional  services  in  case  nothing  is  recovered  for  said  infant, 
and  party  of  the  second  part  is  to  pay  all  court  costs. 

The  said  action  for  the  recovery  of  the  rights  of  the  said 

minor  is  to  be  brought  in  the  name  of  as  next  friend 

for  said  minor. 

Witness  our  hands  on  this day  of ,  19 — . 


Party  of  the  First  Part. 

Party  of  the  Second  Part. 

Sec.  362.    Form  for  decree  of  court  foreclosing  lien  of  attor- 
ney for  services. 

District  Court,  County,  State  of  Oklahoma. 

and ,  Plaintiffs, 


vs.  No.  . 

and ,  Defendants. 

DECREE    OP    FORECLOSURE    OF    ATTORNEY'S    LIEN. 

Now,  on  this day  of ,  19 — ,  the  same  being  one 

of  the  judicial  days  of  the  regular  ,  19 —  Term  of  this 

court,  this  cause  comes  on  for  trial  in  its  regular  order,  and  the 
plaintiffs  appearing  in  person  and  by  their  attorney,  the  de- 
fendants, and  each  of  them,  having  been  three  times  called  in 
open  court,  to  except,  demur,  answer  or  plead  to  the  petition  of 
the  plaintiffs  herein,  came  not,  but  each  of  them  makes  default, 
and  it  appearing  to  the  court  that  said  defendants,  and  each  of 

them,  have  been  duly  notified,  more  than  days  prior  to 

this  date  of  the  pendency  of  this  action,  by  service  of  summons 
upon  them,  as  required  by  law,  and  the  court  haWng  read  the 
pleadings  and  having  heard  the  evidence  adduced  in  support  of 
plaintiffs'  petition,  the  arguments  of  counsel,  and  being  fully 
advised  in  the  premises,  tinds  that  all  the  material  allegations 
contained  in  plaintiffs'  petition  are  true;  that  there  is  due  from 
said  defendants  to  plaintiffs  the  sum  of  $ ,  on  the  cause 


§  362  mekwine's  trial  of  title  to  land.  302 

of  action  set  forth  in  the  petition  herein,  and  the  court  further 
finds  that  plaintiffs  have,  by  reason  of  tlie  premises,  and  by 

reason  of  the  services  rendered  to  the  defendants, , , 

an  attorney's  lien  on  the  lands  and  tenements  described  in  the 
petition  herein,  which  said  real  estate  is  more  specifically  de- 
scribed as  follows,  to-wit:   (Here  specifically  describe  it.) 

It  is  Therefore  considered,  ordered  and  adjudged  by  the  court 
that  the  plaintiffs  have  and  recover  of  said  defendants,  the  sum 

of  $ ,  being  the  amount  so  found  due  them  for  their  fees, 

as  aforesaid,  and  that  said  judgment  bear  interest  at  the  rate  of 
per  cent,  per  annum  until  paid. 

It  is  further  ordered  and  adjudged  by  the  court  that  in  case 

said  defendants  fail  for days  to  pay  said  judgment  and 

said  interest,  and  the  costs  of  this  action,  an  order  of  sale  issue 
to  the  sheriff  of  said  County,  State  of  Oklahoma,  com- 
manding him  to  appraise,  advertise  and  sell,  according  to  law, 
the  lands  and  tenements  in  said  petition  described,  to-wit:  (Here 
describe  same),  with  all  the  improvements  thereon  and  the 
appurtenances  thereunto  belonging,  and  apply  the  proceeds  aris- 
ing from  such  sale : 

1st.    In  payment  of  the  costs  of  said  sale  and  of  this  action. 

2d.  In  payment  of  said  plaintiff's  judgment  and  lien  afore- 
said, together  with  the  interest  thereon. 

3d.  That  the  residue,  if  any  there  be,  be  paid  over  to  the 
clerk  of  the  district  court  of  said  county,  to  be  disposed  of 
according  to  the  further  orders  of  said  court. 

And  it  is  further  ordered  and  adjudged  by  the  court,  that 
from  and  after  the  sale  of  said  lands,  under  and  by  virtue  of 
this  judgment  and  decree,  the  said  defendants,  and  each  of  them, 
and  all  persons  claiming  under  them,  or  any  of  them,  since  the 
commencement  of  this  action,  be,  and  they  are,  forever  barred 
and  foreclosed  of,  to  and  from  any  lien  upon,  right,  title,  estate, 
interest  or  equity  in  and  to  said  lands,  or  any  part  thereof. 

It  is  further  ordered  and  adjudged  that  upon  the  sale  of  said 
real  estate,  and  the  confirmation  thereof  by  the  court,  the  sheriff 
of  said  county  of  place  the  purchaser  at  such  sale,  in 


303        SALE  OF  REAL  ESTATE  FOR  ATTORNEY'S  FEES.     §  363 

peaceable  possession  of  said  premises,  and  that  a  writ  of  restitu- 
tion issue  to  that  end  out  of  this  court. 


Judge  of  said  Court. 

Sec.  363.    Form  for  order  of  sale  directed  from  the  clerk  to 
the  sheriff. 

District  Court,  County,  State  of  Oklahoma. 

and ,  riaintiffs, 


vs.  No.  . 

and  ,  Defendants. 

ORDER  OF  SALE  OF  REAL  ESTATE. 

State  of  Oklahoma, County,  ss. : 

To  the  Sheriff  of County,  Oklalioma,  Greeting: 

"Whereas,  on  the day  of ,  19 — ,  the  same  being 

one  of  the  regular  days  of  the ,  19 —  Term  of  this  court, 

in  an  action  then  pending  in  said  court,  where  in  and 

were  plaintiffs,  and  ,  ,  and  

were  defendants,  said  plaintiffs  recovered  a  judgment  against 

said  defendants, , ,  and ,  in  the  sum 

of  $ ,  with  interest  thereon  from  the  date  of  said  judg- 
ment, at  the  rate  of per  cent,  per  annum  until  paid,  and 

for  the  costs  of  this  action,  taxed  at  the  sum  of  $ ;  and, 

Whereas,  on  said  day  by  said  court,  it  was  further  consid- 
ered and  ordered,  in  said  cause,  that  in  case  said  defendants, 

, , and ,  failed  for days  from 

said day  of ,  19 — ,  to  pay  to  the  plaintiffs  said  sum 

of  $ ,  with  interest  thereon,  and  the  costs  of  said  action, 

an  order  of  sale  issue  to  the  sheriff  of County,  State  of 

Oklahoma,  commanding  him  to  appraise,  advertise  and  sell  ac- 
cording to  law,  the  following  described  lands  and  tenements, 
to-wit:  (Here  describe  same),  with  all  improvements  thereon 
and  appurtenances  thereunto  belonging;  and, 

Whereas,  the  order  and  judgment  of  said  court  in  said  cause 
require  that  the  proceeds  arising  from  such  sale  should  be 
applied  as  follows,  to-wit: 


§  364  merwine's  trial  of  title  to  land.  304 

1st.    In  payment  of  the  costs  of  said  sale  and  of  this  action. 

2d.  In  payment  to  safd  plaintiffs  of  the  sum  of  $ ,  judg- 
ment, with  interest  thereon. 

3d.  That  the  residue,  if  any  there  be,  be  paid  over  to  the 
clerk  of  this  court  to  await  the  further  order  of  this  court. 

Now,  Therefore,  these  are  to  command  you  that  you  proceed 
according  to  law  to  appraise,  advertise  and  sell  the  lands  and 
tenements  hereinabove  described,  according  to  law,  and  apply 
the  proceeds  arising  from  such  sale  as  directed  by  said  judgment 
as  aforesaid. 

You  will  make  due  return  of  this  order  of  sale  with  your 
proceedings  indorsed  thereon,  showing  the  manner  in  which  you 
have  executed  the  same  within  sixty  days  from  the  date  hereof. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and 
affixed  the  seal  of  said  court  this day  of ,  19 — . 


[Seal.]  Clerk  of  said  Court. 

Sec.  364.    Form  for  the  appraisement  of  the  real  estate. 


District  Court,  County,  State  of  Oklahoma. 

and  ,  Plaintiffs, 

vs. 

and  ,  Defendants. 


No. 


I,  the  undersigned,  sheriff  of  County,  State  of  Okla- 
homa, do  hereby  call  an  inquest  of ,  and  , 

three  disinterested  householders  who  are  residents  within  said 

county  of  ,  to  impartially  estimate  and  appraise,  upon 

actual  view,  the  following  described  real  estate,  situated  in  said 

county  of  ,  to-wit :    (Here  describe   real  estate.)      They 

will  first  take  and  subscribe  the  following  oath,  then  proceed 
forthwith  to  make  and  return  to  me,  under  their  hands,  an 
estimate  of  the  real  value  of  said  property. 

Witness  my  hand  this day  of  ,  A.  D.  19 — , 


Sheriff  of  said  County  of 


305  SAL.E   OF   REAL  ESTATE   FOR  ATTORNEY'S   FEES.     §§365-367 

Sec.  365.    The  form  for  the  oath  of  the  appraisers. 

State  of  Oklahoma, County,  ss. : 

We  do  solemnly  swear  that  we  are  disinterested  householders, 

residents  within  said  county  of ;  that  we  will  impartially 

appraise  upon  actual  view  the  real  estate  above  described,  and 

forth\^ath  return  to  the  sheriff  of  said  county  of ,  under 

our  hands,  an  estimate  of  the  real  value  of  said  property.     So 
help  us  God. 


Appraisers. 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


Sheriff  of  said  County  of  ,  OklaJioma. 

Sec.  366.     Form  for  the  appraisement  of  the  real  estate. 

We,  the  undersigned,  in  pursuance  of  the  foregoing  appoint- 
ment and  oath  to  appraise  and  estimate  the  real  property  afore- 
said, do  hereby  report  to  said  sheriff  that  we  have  performed  the 
duties  assigned  us,  by  going  upon  and  making  strict  examination 
of  said  property,  and  we  do,  upon  actual  view  of  the  same, 
estimate  and  appraise  the  real  value  of  the  same  as  follows : 
(Here  specifically  describe  real  estate),  at  $ . 

In  Witness  Whereof,  we  have  hereunto  set  our  hands  this 
day  of ,  19 — . 


Appraisers. 

Sec.  367.     Form  for  the  publication  of  the  notice  of  sale  of 
the  real  estate  by  the  sheriff. 

Notice  is  hereby  given  that,  in  pursuance  of  an  order  of  sale 

issued  out  of  the  district  court  of County,  Oklahoma,  on 

the  day  of  ,  19 — ,  in  an  action  wherein  


§  368  merwine's  trial  of  title  to  land.  306 

and  were   plaintiffs,   and  ,   ,  and 

were  defendants,  directed  to  me,  the  undersigned  sheriff 

of  said  county  of ,  commanding  me  to  levy  upon,  appraise 

and  sell  the  foUo^^dng  described  real  estate,  to-wit :  (Here  de- 
scribe it),  to  satisfy  a  judgment  and  decree  of  foreclosure  of  an 
attorney's  lien  for  fee,  in  favor  of  said  plaintiffs,  and  against 

said  defendants,  obtained  and  made  in  said  court  on  the 

day   of  ,   19—,   for  the   sum   of  $ ,   with   interest 

thereon  at  the  rate  of  per  cent,  per  annum,  from  the 

day  of  ,  19 — ,  and  costs  in  the  sum  of  $ , 

and  $ ,  accruing  costs,  I  will,  on  the day  of , 

19_^  at  the  hour  of o'clock,  in  the  afternoon  of  said  day, 

at  the  front  door  of  the  courthouse  in  the  city  of  ,  in  the 

county  of ,  and  State  of  Oklahoma,  offer  for  sale  and  sell 

to  the  highest  bidder  for  cash,  said  property  above  described,  or 
so  much  thereof  as  will  satisfy  said  judgment,  with  interest  and 
costs. 

Witness  my  hand  this day  of ,  19 — . 


Sheriff  of  County. 


Attorneys  for  Plaintiffs. 

Sec.  368.    Form  for  proof  of  publication  of  notice  of  sale. 

State  of  Oklahoma, County,  ss. : 

,  being  first   duly  sworn,  says  that  he  is  of 

,  a  daily  newspaper,  printed  and  published  in  the  city  of 

,  County,  State  of  Oklahoma,  which  newspaper 

has  been  legally  published  with  a  bona  fide  subscription  list, 
and  of  general  circulation  in  said  county  for  fifty-two  consecu- 
tive weeks  next  preceding  the  date  of  the  first  publication  of  the 
notice  of  which  the  attached  is  a  true  copy,  and  said  notice  was 

published  once  each  week  for  consecutive  weeks  in  said 

newspaper,   the   same   being   in   the   regular  issues   of  , 

,  and ,  19—. 


307       SALE  OP  REAL  ESTATE  FOR  ATTORNEY'S  FEES.     §  369 

Subscribed  and  sworn  to  before  me  by  ,  on  the 

day  of  ,  19 — .  , 


[Seal.]  Notary  Fublic. 

My  commission  expires . 

Sec.  369.    Form  for  the  sheriff's  return  of  his  proceedings 
under  the  writ. 

SHERIFF'S    EETURN. 

Received  this  writ   on  the  day  of  ,   19 — ,   at 

o'clock,  —  m.,  and,  in  obedience  to  the  commands  of  said 


writ,  I  summoned  ,  and  ,  three  disinter- 
ested householders,  residents  of  this  county,  on  the  day 

of ,  19 — ,  and  administered  to  them  an  oath,  impartially 

to  appraise  the  lands  and  tenements  described  in  this  writ,  upon 

actual  view,  and  afterward,  on  the  day  of ,  19 — , 

said  appraisers  returned  to  me  under  their  hands  and  oath,  that 
they  did,  upon  actual  view,  estimate  and  impartially  appraise 
the  real  value  of  said  property  at  $ .  I  forthwith  depos- 
ited in  the  office  of  the  clerk  of  the  district  court  of  this  county 

a  certified  copy  of  said  appraisement,  on  the  day  of 

,  19 — .    I  thereupon  caused  public  notice  of  the  time  and 

place  of  sale  of  said  lands  and  tenements  to  be  given  by  advertis- 
ing the  same  for  more  than days  before  the  day  of  sale  in 

,  a  newspaper  of  general  circulation  in  said  county,  the 

first  of  said   publications   being   made   on  the  day   of 

,  19 — ,  and  once  each  week  thereafter,  for  four  consecu- 
tive w^eeks,  until  the  day  of  sale.  And,  in  pursuance  of  said 
notice,  at  the  time  and  place  mentioned  therein,  I  did,  on  the 

day  of ,  19 — ,  at  the  hour  of o  'clock  —  m., 

at  the  north  door  of  the  courthouse  of  this  county,  offer  for  sale 

said  lands  at  public  sale,  and  then  and  there  came  ,  who 

bid  for  said  property  the  sum  of  $ ,  said  sum  being  the 

more  than  two-thirds  of  the  appraised  value  thereof,  and  he, 
being  the  highest  and  best  bidder  therefor,   I  then  and  there 


§  370  merwine's  trial  of  title  to  land.  308 

struck  off  and  sold  said  lands  and  tenements  to  said for 

the  sum  of  $ . 

Dated  this day  of ,  19—. 


Sheriff  of County. 

Sec.  370.    The  confirmation  of  the  sale  by  the  sheriff. 

District  Court,  County,  State  of  Oklahoma. 


and  

,  Plaintiffs, 

and  

,  Defendants. 

No.- 


ORDER    CONFIRMING    SALE. 

This  cause  coming  now  to  be  heard  upon  the  return  of  the 
sheriff  of  his  sale  of  the  real  estate  herein,  to-wit:  (Here  de- 
scribe it),  and  of  his  proceedings  under  the  order  of  sale  here- 
tofore herein  issued  to  him  by  this  court,  and  the  court,  having 
examined  said  proceedings,  and  finding  the  same  regular  and 
according  to  the  statutes  in  such  case  made  and  provided  and 
according  to  the  former  orders  of  this  court,  it  is  ordered  that 
the  same  be  approved  and  confirmed. 

It   is   further   ordered   that   said   sheriff   make,   execute   and 

deliver  to  a  deed  in  due  form  of  law  of  the  said  real 

estate  so  sold  him. 

And  the  court  coming  now  to  distribute  the  proceeds  of  said 

sale  amounting  to  $ ,  it  is  ordered  that  the  sheriff  out  of 

the  moneys  in  his  hand  pay: 

First.    To  the  clerk  of  the  court  the  sum  of  $ ,  the  costs 

of  this  action. 

Second.      To  plaintiffs  on  their  said  judgment   the   sum   of 

$ ,  the  same  being  the  amount  found  due  them  for  their 

judgment  herein. 

Third.     To  the  defendant,  ,  the  balance  remaining  in 

the  hands  of  said  sheriff. 

It  is  further  ordered  that  a  ^Yrit  of  possession  is  ordered  to 
put  in  possession  of  said  real  estate. 


JudgS  of  said  Court. 


309       SALE  OF  REAL  ESTATE  FOR  ATTORNEY'S  FEES.     §  371 

Sec.  371.    Form  for  sheriff's  deed  to  the  purchaser. 

This  indenture,  made  this  day  of  ,  19—,  be- 
tween   ,  the  sheriff  of  County,  in  the  State  of 

Oklahoma,  party  of  the  first  part,  and ,  of  the  county  of 

^    State   of   Oklahoma,   party   of   the  second  part,    WIT- 
NESSETH: 1       1.     e 
Thit,  Whereas,  by  virtue  of  an  order  of  sale  issued  out  of 

the  office  and  under  the  seal  of  the  district  court  of  the  

iudicial  district  of  the  State  of  Oklahoma,  in  and  for  — — 
County,  attested  the day  of ,  19-,  npon  a  judg- 
ment for  the  sum  of  $ ,  ^vith  interest  thereon,  at  the  rate 

of per  cent,  per  annum  from  the day  of 

19-   in  case  number ,  duly  docketed  in  said  court,  said 

judgment  being  in   favor  of  and  ,  and  against 

^ and ,  and  said  judgment  being  m 

words  and  figures  as  follows,  to-wit:  (Here  copy  judgment  and 
order  of  sale  as  found  in  the  proceedings  herein)  ;  and. 

Whereas, ,  sheriff  aforesaid,  having  caused  said  prem- 
ises to  be  appraised  by  three  disinterested  householders,  residents 
of  said  county,  who  having  returned,  under  oath,  their  appraise- 
ment of  the  real  value  of  said  property  at  $ ;  and. 

Whereas,  said  sheriff,  having  advertised  the  time  and  place 
of  said  sale  in ,  a  newspaper,  printed  and  of  general  cir- 
culation in  said  county,  for  a  period  of days  prior  to  the 

date  of  said  sale,  and  othevvnse  having  complied  with  said  order 
and  the  provisions  of  the  statutes  of  this   State,  did,  on  the 

(Jay  of ,  19—,  at  the  front  door  of  the  courthouse 

in  said  county,  at  -^—  o'clock,  -  m.,  of  said  day,  offer  for 
sale,   at  public   auction,  the  real  estate  herein  described,  and 

thereupon,  ,  having  bid  for  said  premises  the  sum   of 

$ ,  said  sum  being  the  highest  and  best  bid  therefor,  and 

more  than  two-thirds  of  the  appraised  value  thereof,  said  prem- 
ises were  then  and  there  sold  to  the  said ;  and. 

Whereas,  the  court,  at  its  ,  19-  Term,  ha^dng  exam- 
ined the  proceedings  aforesaid,  under  the  direction  of  said  order 
of  sale,  and  being  satisfied  that  said  sale  has  been  held  m  all 


§  371  MERWINE  'S   TRIAL   OF   TITLE   TO   LAND.  310 

respects  in  pursuance  to  said  judgment  and  order  of  sale,  and 
in  accordance  with  the  provisions  of  the  statute  regulating  such 
sales,  did  order  that  said  sale  be  confirmed,  and  that  said  sheriff 

of  said  county  should  convey  said  premises  to  said  ,  by 

good  and  sufficient  deed. 

Now,  Therefore,  ,  as  sheriff  of  County,  State 

of  Oklahoma,  party  of  the  first  part,  by  virtue  of  said  writ  and 
order,  and  in  pursuance  of  the  statute  in  such  case  made  and 

provided,  and  for  and  in  consideration  of  the  sum  of  $ , 

to  me  in  hand  paid,  by  ,  party  of  the  second  part,  the 

receipt  whereof  is  hereby  acknowledged,  does  grant,  bargain, 
sell  and  convey  unto  the  said  party  of  the  second  part,  his  heirs 
and  assigns  forever,  the  following  described  real  estate,  to-wit: 
(Here  describe  it),  together  wdth  all  the  privileges  and  appur- 
tenances thereunto  belonging. 

To  Have  and  to  Hold  said  premises,  with  the  appurtenances, 
to  said  party  of  the  second  part,  his  heirs  and  assigns,  as  fully 
and  completely  as  he,  the  said  sheriff  aforesaid,  by  virtue  of  said 
judgment  and  order  of  sale,  confirmation  and  the  statute  in  such 
ease  may  or  ought  to  grant,  bargain,  sell  and  convey  the  same. 

In  "Witness  Whereof,  the  party  of  the  first  part  has  hereunto 
set  his  hand  the  day  and  year  first  above  written. 


Sheriff  of  County,  State  of  Oklalioma. 

State  of  Oklahoma,  County,  ss. : 

Before  me, ,  a  notary  public  in  and  for  said  county  and 

State,  on  this  day  of  ,  19 — ,  personally  appeared 

,  to  me  known  to  be  the  identical  person  who  executed 

the  within  and  foregoing  instrument  and  acknowledged  to  me 
that  he  executed  the  same  in  his  capacity  therein  stated  and  as 
his  free  and  voluntary  act  and  deed,  for  the  uses  and  purposes 

ther'ein  set  forth.  , 

[Seal.]  Notary  Public. 

My  commission  expires . 


CHAPTER   X. 


PROCEDURE   BY   WHICH    TRUSTEE   IN    BANKRUPTCY 
SELLS  REAL  ESTATE  AT   PRIVATE   SALE. 


SECTION 

372.  Ihe     source     of     the    trustee's 

authority  to  sell. 

373.  The  appraisal  of  the  real  estate. 

374.  The  manner  in  which  the  sale 

is  conducted. 

375.  The    order    of    the    court    ap- 

pointing appraisers. 

376.  The    oath    of     appraisers,    the 

appraisement   and   return    of 
the   appraisers. 

377.  The  petition  to  sell  real  estate 

at    private    sale,    subject    to 
incumbrances. 
The    order    to    sell    real    estate 
at     private     sale     subject    to 
incumbrances. 


378. 


SECTION 

379.  The  entry  confirming  such  sale. 

380.  The   petition    for    sale    of   real 

estate  by  public  auction. 

381.  The  order  of  the  court  author- 

izing sale   at  public  auction. 

382.  The   petition   for    sale   of   real 

estate  at  public  auction,  sub- 
ject to  liens. 

383.  The    order    and    decree    of   the 

court    authorizing    such    sale. 

384.  The   deed   from   tlie   trustee  to 

purchaser     at    trustee's    sale 
of  real  estate  in  bankruptcy. 


Sec.  372.     The  source  of  the  trustee's  authority  to  sell. 

In  every  case  where  real  estate  of  a  bankrupt  is  to  be  sold 
under  the  national  bankruptcy  act,  the  petition  and  schedules 
must  have  been  filed  and  all  of  the  procedure  of  the  act  com- 
plied with  up  to  and  including  the  appointment  of  a  trustee. 

Under  the  present  bankruptcy  law,  the  power  of  the 
trustee  is  derived  from  the  authority  given  the  trustee  to 
collect  and  reduce  to  money  the  property  of  the  estate.^ 


1  Section  47  of  tlie  Bankruptcy 
Act  of  1908.  It  is  said  by  Black  on 
Bankruptcy,  that,  "The  bankrupt 
law  of  18 07  conferred  express  au- 
thority upon  assignees  in  bank- 
ruptcy   to    make    sale    of    real    and 


personal  estates,  either  on  their 
own  motion,  in  certain  cases,  or 
by  order  and  direction  of  the  court, 
and  prescribe  the  manner  and  effect 
cf  such  sales."  Black  on  Bank- 
ruptcy, 159. 


311 


§§373,374        merwine's  trial  op  title  to  land.  312 

Sec.  373.     The  appraisal  of  the  real  estate. 

The  real  estate  of  the  bankrupt  must  be  appraised.  The 
number  of  appraisers  must  be  three,  and  they  must  be  dis- 
interested. 

The  appraisers  must  be  sworn,  as  in  other  cases,  and  they 
must  return  their  appraisement  to  the  court.- 

Sec.  374.    The  manner  in  which  the  sale  is  conducted. 

The  sale  can  be  had  at  either  public  or  private  sale.  Such 
sale  is  entirely  under  the  direction  of  the  court.  The  trustee, 
when  a  sale  is  desired,  files  his  petition  in  the  case,  asking 
for  authority  to  sell.  The  sale  cannot  be  for  less  than  three- 
fourths  of  the  appraisement.^ 

The  sale  can  be  made  subject  to  the  wife's  dower  and  to 
liens  and  incumbrances.  This  sale  subject  to  incumbrances 
is  usually  asked  when  the  liens  and  incumbrances  amount 
almost  to  the  value  of  the  real  estate,  and  there  is  not  much 
to  be  gained  by  the  sale  for  the  creditors.  However,  the 
power  to  sell  real  estate  is  discretionary,  and  it  may  or  may 
not  be  exercised  as  the  court  may  deem  proper.  It  some- 
times happens  that  the  real  estate  is  not  sold  and  the  lien- 
holders  are  left  to  work  out  their  rights  in  the  State  courts.* 

But  the  usual  and  better  way  is  for  the  court  or  the 
referee  to  sell  the  real  estate  free  of  every  lien  and  in- 
cumbrance, as  is  done  in  the  State  courts.  In  such  instances, 
as  is  the  case  in  the  State  courts,  the  liens  and  various  claims 

2  Section  70b  of  the  Bankruptcy  form  of  petition  for  sale  of  real 
Act.  See  Section  375  for  form  for  estate  at  public  auction;  see  Sec- 
order  of  court  appointing  ap-  tion  383  for  order  of  court  author- 
praisers;  see  Section  376  for  form  izing  sale  at  public  auction,  subject 
of  the  oath  and  return  of  the  ap-  to  liens;  see  Section  384  for  deed 
praisement.  by    trustee     to    purchaser    of     real 

3  Section     706,     Bankruptcy    Act.  estate. 

See  Section  377  for  form  of  peti-  4  See  5  Cj'c.  383,  citing  Sessions 
tion  to  sell  real  estate  at  private  v.  Ramodka,  145  U.  S.  29;  Spar- 
sale  subject  to  liens  and  incum-  hawk  v.  Yerkes,  142  U.  S.  1 ;  Glanny 
brances;  see  Section  378  for  form  v.  Langdon,  98  U.  S.  20;  In  re 
for  order  for  sale  of  real  estate  at  Cogly,  107  Fed.  73,  5  Am.  Bank, 
private    sale;    see    Section    380    for  Rep.  731. 


313  REAL  ESTATE  AT  PRIVATE  SALE.  §§  375,  376 

will  attach  to  the  fund  for  distribution.  The  sale  cannot  be 
made  even  in  this  manner,  if  such  sale  will  result  in  injury 
to  the  general  creditors  or  to  the  injury  of  a  lienholder.^ 

Sec.  375.    The  order  of  the  court  appointing  appraisers. 

In  the  District  Court  op  the  United  States  for  the 

District  of  Oklahoma,  Division. 

In  the  Matter  of  No. . 


,  Bankrupt.  In  Bankruptcy. 

This  day  came  the  trustee  in  bankruptcy  and  represents  to  the 
court  that  it  is  necessary  to  a  complete  settlement  of  the  estate, 
that  the  interest  of  the  bankrupt  in  the  real  estate  set  forth  in 
the  schedule  filed  herein  should  be  appraised,  and  asked  that 
the  court  appoint  three  appraisers. 

Upon  consideration  whereof  the  court  hereby  appoints , 

and to  act  as  such  appraisers. 


Referee  in  Bankruptcy. 


Sec.  376.    The  oath,  the  appraisement  and  return  of  the  ap- 
praisers. 

In  the  District  Court  of  the  United  States  for  the 

District  of  Oklahoma,  Division. 

In  the  ]\Iatter  of  No. . 

,  Bankrupt.  In  Bankruptcy. 

,  and  ,  being  first  duly  sworn,  say  that 


they  will  honestly  and  truly  appraise  the  real  estate  belonging 
to  the  within  bankrupt  to  the  best  of  their  ability  and  make  due 
return  thereof  to  the  court. 


6  In  re  Styer,  3  Am.  Bankruptcy    Rep.   424. 


§  877  merwine's  trial  of  title  to  land.  314 

Sworn  to  by  the  said , and ,  and  by  them 

subscribed  in  my  presence  this  day  of ,  19 — . 


Notary  Puldic,  County,  State  of  OJdahoma. 

My  commission  expires . 

We,  the  undersigned  appraisers  in  the  above  entitled  cause, 
hereby  represent  to  the  court  that  we  personally  inspected  and 
viewed  the  premises  belonging  to  the  bankrupt,  to-wit:  (Here 
describe  said  real  estate),  and  we  do  hereby  fix  the  value  of  the 
same  at  $ .  » 


Sec.  377.    The  petition  to  sell  real  estate  at  private  sale. 

In  the  District  Court  of  the  United  States  for  the 

District  of  Oklahoma,  Division. 

In  the  :Matter  of  No. 


Bankrupt.  lu  Bankruptcy. 

Respectfully  represents ,  the  duly  appointed  trustee  of 

the  estate  of  the  aforesaid  bankrupt,  that  the  following  described 
real  estate  mentioned  and  set  forth  in  the  schedule  of  said  bank- 
rupt (Here  describe  it)  be  sold. 

Said  trustee  asks  that  the  same  be  sold  at  private  sale  for  the 
folloAving  reasons,  to-wit:  said  real  estate  has  been  appraised 

at  $ ,  and  there  is  a  mortgage  of  $ against  said  real 

estate,  together  wdth  interest  thereon  from  the  day  of 

,  19 — ;  that  there  is  also  a  lien  for  taxes  on  said  real 

estate  in  amount  more  than  the  sum  of  $ ;  that  one 


has  offered  to  pay  to  the  said  trustee  the  sum  of  $ for 

said  real  estate,  and  agrees  to  assume  and  pay  said  mortgage, 
taxes,  assessment  and  penalties  charged  as  a  lien  thereon,  and 
that  it  would  be  impossible,  in  the  opinion  of  your  trustee,  to 
sell  said  real  estate  in  the  open  market  for  more  than  sufficient 
to  pay  the  liens  against  the  same,  and  respectfully  represents  that 
it  is  desirable  and  for  the  best  interests  of  the  estate  to  sell  at 
private  sale  said  real  estate  as  aforesaid. 


315  REAL  ESTATE  AT  PRIVATE  SALE.  §  378 

Wherefore  he  prays  that  he  may  be  authorized  to  sell  said 

real  estate  at  private  sale  to  said for  the  sum  of  $ , 

on  the  assumption  by  said  purchaser  of  said  mortgage,  taxes, 
assessments  and  penalties. 

Dated  this day  of ,  19 — . 


Trustee. 

State  of  Oklahoma,  County,  ss. : 

,  being  duly  sworn,  says  that  he  is  the  trustee  aforesaid, 

and  that  the  allegations  contained  in  the  foregoing  petition  are 
true  as  he  verily  believes. 


Sworn  to  before  me  and  subscribed  in  my  presence,  this 
day  of ,  A.  D.  19—. 


My  commission  expires  .  Notary  Fiiblic. 


Sec.  378.     The  order  to  sell  real  estate  at  private  sale. 

Tliis  day  this  cause  came  on  to  be  heard  upon  the  application 
of  the  trustee  herein  for  permission  to  sell  the  real  estate  here- 
inafter described  at  private  sale  to  at  terms  hereinafter 

set  out,  and  the  same  was  submitted  to  the  court  upon  said 
application  and  the  evidence,  and  the  court  finds  that  said  real 

estate  was  appraised  at  $ ;  that  the  same  is  mortgaged  to 

the  gum  of  $ ,  together  with  interest  on  said  sum  from  the 

day  of  ,  19 — ;  that  it  will  be  difficult,  if  net  im- 
possible, to  find  a  purchaser  for  such  an  interest  so  incumbered, 
that  the  same  cannot  be  sold  at  public  sale,  and  that  it  is  to  tli^ 

interest  of  said  estate  to  accept  the  offer  of  said  ,  to- wit : 

to  take  said  interest  of  said and  to  pay  the  said  

trustee  therefor  the  sum  of  $ in  the  manner  following, 

to-wit:  for  cash;  also  said  is  also  to  pay  any  penalties 

that  may  be  added  to  said  taxes. 

The  application  of  said  trustee  is  therefore  granted  and  said 

trustee  is  hereby  ordered  to  convey  to  the  said ,  at  private 

sale,  on  the  terms  hereinabove  set  out,  all  the  right,  title  and 


§§  379,  380        merwine's  trial  or  title  to  land. 

interest  of  the  said  ,  trustee  in  bankruptcy  of  the  said 

,  bankrupt,  of,   in  and  to  the  following  described  real 

estate  situated  in  the  county  of  ,  in  the  State  of  Okla- 
homa, and  in  the  city  of ,  and  bounded  and  described  as 

follows:  (Here  describe  it.) 

And  said  trustee  is  ordered  to  report  his  proceedings  there- 
under to  this  court. 


Sec.  379.    The  entry  confirming  said  sale. 

In  the  District  Court  op  tpie  United  States  for  the 

District  of  Oklahoma,  Division. 

In  the  Matter  of  No.  — 


,  IBankrupt.  In  Bankruptcy. 

Now  comes  ,  trustee  in  bankruptcy  of  the   estate   of 

,  bankrupt,  and  respectfully  represents  to  the  court  that, 


in  pursuance  to  an  order  of  court  hereinbefore  made,  he  has 

sold  to  ,  at  private  sale,  said  real  estate  described  in  the 

petition  herein,  and  it  appearing  to  the  court,  upon  the  examina- 
tion of  the  proceedings  of  said  trustee  in  connection  with  said 
sale  of  said  real  estate,  that  said  sale  has  been  made  in  strict 
accordance  with  the  law  and  the  orders  of  this  co-urt,  the  said 

sale  is  therefore  approved  and  confirmed,  and  the  said  , 

trustee   is   ordered    to   execute   and    deliver   to    the   purchaser, 

,  upon  his  compliance  with  the  terms  of  sale,  a  proper 

deed  of  the  real  estate  so  by  him  sold  as  aforesaid. 


Sec.  380.    Petition  for  sale  of  real  estate  at  public  sale. 

In  the  District  Court  of  the  United  States  for  the  — 

District  of  Oklahoma,  Division. 

In  the  Matter  of  No. 


,  Bankrupt.  In  Bankruptcy. 

Respectfully  represents  ,  trustee  of  the  estate  of  said 

bankrupt,  that  it  would  be  for  the  benefit  of  said  estate  that  a 
certain  portion  of  the  real  estate  of  said  bankrupt,  to-wit: 
(Here  describe  it  and  its  estimated  value) 'should  be  sold  at 


317  REAL   ESTATE   AT   PRIVATE   SALE.  §§381,382 

auction,  in  lots  or  parcels,  and  upon  terms  and  conditions  as 

follows:  — •     Wlierefore,  he  prays  that 

he  may  be  authorized  to  make  sale  by  auction  of  said  real  estate 
as  afoj-esaid. 

Dated  this day  of ,  A.  D.  19—. 


Trustee. 

Sec.  381.    The  order  of  the  court  authorizing  sale  at  public 
auction. 

The  foregoing  petition,  having  been  duly  filed,  and  having 
come  on  for  a  hearing  before  me,  of  which  hearing  ten  days' 
notice  was  given  by  mail  to  creditors  of  said  bankrupt,  now, 
after  hearing,  no  adverse  interest  being  represented  thereat  (or 

after  hearing  in  favor  of  said  petition  and  in 

opposition  thereto),  it  is  ordered  that  the  said  trustee  is  au- 
thorized to  sell  the  portion,  by  auction,  keeping  an  accurate 
account  of  each  lot  or  parcel  sold  and  the  price  received  therefor 
and  to  whom  sold,  which  said  account  he  shall  file  at  once  "snth 
the  referee. 

Witness  my  hand  this day  of ,  A.  D.  19 — . 


Referee  in  Bankruptcy. 


Sec.  382.    Petition  and  order  for  sale  subject  to  lien. 

In  the  District  Court  of  the  United  States  for  the 

District  of  Oklahoma,  Division. 

In  the  :\ratter  of  No. 


-,  Bankrupt.  In  Bankruptcy. 

Respectfuly  represents  ,  trustee  of  the  estate  of  said 

bankrupt,  that  a  certain  portion  of  said  bankrupt's  estate, 
to-Avit :  (Here  describe  the  estate  or  property  and  its  estimated 
value)  is  subject  to  a  mortgage  (describe  mortgage),  or  to  a  con- 
ditional contract  (describe  it),  or  a  lien  (describe  the  origin 
and  nature  of  the  lien),  or  (if  the  property  be  personal  prop- 
erty) has  been  pledged  or  deposited  and  is  subject  to  a  lien  for 
(describe  the  nature  of  the  lien),  and  that  it  would  be  for  the 


§§383,384  merwine's  trial  op  title  to  land.  318 

benefit  of  the  said  estate  that  said  property  should  be  sold, 
subject  to  said  mortgage,  lien  or  other  incumbrance.    "Wlierefore 
he  prays  that  he  may  be  authorized  to  make  sale  of  said  prop- 
erty, subject  to  the  incum))rances  thereon. 
Dated  this day  of ,  A.  D.  19—. 


Trustee. 

Sec.  383.  The  order  and  decree  of  the  court  authorizing-  such 
sale. 

The  foregoing  petition,  having  been  duly  filed  and  having 
come  on  for  a  hearing  before  me,  of  which  hearing  ten  days' 
notice  was  given  by  mail  to  creditors  of  said  bankrupt,  now, 
after  due  hearing,  no  adverse  interest  being  represented  thereat 

(or  after  hearing  in  favor  of  said  petition  and  • 

in  opposition  thereto),  it  is  ordered  that  the  said  trustee  be 
authorized  to  sell  the  portion  of  the  bankrupt's  estate,  specified 
in  the  foregoing  petition,  by  auction  (or,  at  private  sale),  keep- 
ing an  accurate  account  of  the  property  sold  and  the  price 
received  therefor  and  to  whom  sold,  which  said  account  he  shall 
file  at  once  with  the  referee. 

"Witness  my  hand  this  — day  of ,  A.  D.  19 — . 


Referee  in  Bankruptcy. 


Sec.  384.    Deed  by  trustee  to  purchaser. 

Know  All  jMen  by  These  Presents,  that,  whereas,  on  the 
day  of  ,  A.  D.  19 — ,  was  duly  adjudged 


bankrupt  by  the  District   Court  of  the  United  States  for  the 

District   of   Oklahoma,   Division,   and   the   said 

was  duly  appointed  and  qualified  as  trustee  of  the  estate 

of  the  said  in  bankruptcy,  and  is  now  acting  as  said 

trustee,  and  on  the day  of ,  19 — ,  said  trustee  filed 

a  certain  petition  in  said  District  Court  for  the  United  States 

for  the  District  of  Oklahoma,  Division,  praying, 

among  other  things,  for  an  order  of  sale  for  said  real  estate 
therein  mentioned  and  hereinafter  described;  and, 


319  REAL  ESTATE  AT  PRIVATE  SALE.  §  3S4 

Whereas,  proceedings  were  had  on  said  petition  in  accord- 
ance with  the  bankruptcy  laws  of  the  United  States  in  such  case 
made  and  provided,  and  the  petition  coming  on  for  hearing  on 

the  day  of  ,  19 — ,   of  which  hearing  ten  days' 

notice  had  been  given  by  mail  to  said  creditors  of  said  bankrupt, 
it  was  ordered  that  said  trustee  be  authorized  to  sell  the  portion 
of  the  bankrupt's  estate  specified  in  his  petition  and  hereinafter 
described,  at  private  sale,  keeping  an  accurate  account  of  the 
property  sold,  and  the  price  received  therefor,  and  to  whom  sold, 
and  on  the  same  day,  in  pursuance  of  said  order  and  judgment, 
an  order  of  sale  of  said  real  estate  therein  described  was  issued 

out  of  said  court  under  the  seal  thereof  to  said ,  trustee  of 

the  estate  of  in  bankruptcy,  as  aforesaid  directed,  com- 
manding him  to  execute  the  said  order,  and  of  the  same,  to- 
gether with  his  proceedings  thereon,  to  make  due  return  to  said 
court:  and. 

Whereas,  said ,  trustee  of  the  estate  of in  bank- 
ruptcy, having  caused  said  premises  to  be  appraised  and  the 

report  of  said  appraisement  to  be  filed  with ,  the  referee, 

and  having,  on  the  day  of  ,  19 — ,  returned  said 

order  of  sale  to  said  court,  as  commanded,  vrith  the  proceedings 
thereon,  stating  in  substance  that,  in  obedience  to  said  order,  he 

sold  the  same  to  ,  which  was  the  best  price  he  could  get 

for  same,  and  being  more  than  seventy-five  per  cent,  of  the 
appraised  value  of  said  premises,  he  then  and  there  sold  the 

same  to  said for  said  sum ;  and. 

Whereas,  on  the day  of ,  19 — ,  the  said  court, 

having  examined  the  proceedings  of  the  said  sale,  aforesaid, 
under  said  order  of  sale,  and  it  appearing  to  the  court  that  said 
sale  was  in  all  respects  legally  made,  ordered  that  the  same  be 
approved  and  confirmed,  and  that  said ,  trustee  as  afore- 
said, should  execute  and  deliver  a  proper  deed  to  the  purchaser 
of  the  real  estate  so  sold,  all  of  which  will  more  fully  appear 
by  the  record  of  said  court,  to  which  reference  is  here  made. 

Now,  Therefore,  T,  the  said  ,  trustee  of  the  estate  of 

• in  bankruptcy  aforesaid,  by  virtue  of  said  order  of  sale, 

sale  and  confirmation,  and  of  the  statute  in  such  case  made  and 


§  384  merwine's  trial  of  title  to  land.  320 

provided,  and  of  the  powers  vested  in  me  and  for  and  in  con- 
sideration of  the  premises,  and  the  sum  of  $ paid  to  me 

by  the  said ,  the  receipt  whereof  is  hereby  acknowledged, 

do  hereby  grant,  bargain,  sell  and  convey  to  the  said ,  his 

heirs  and  assigns  forever,  the  following  real  estate  situated  in 

the  county  of ,  in  the  State  of  Oklahoma,  and  in  the  city 

of :  (Here  describe  real  estate  in  question.) 

To  Have  and  to  Hold  said  premises  with  all  the  privileges 

and  appurtenances  thereunto  belonging  to  said ,  his  heirs 

and  assigns   forever,  as  fully  and  completely  as  he,   the  said 

,  as  such  trustee  in  bankruptcy,  by  virtue  of  said  order 

of  sale,  sale  and  confirmation,  and  of  the  statute  made  and 
provided  in  such  cases,  might  and  should  sell  and  convey  the 
same. 

In  Witness  Whereof,  the  said  ,  as  such  trustee,  has 

hereunto  set  his  hand  this day  of ,  A.  D.  19 — . 


Trustee  of  the  Estate  of  ,  Bankrupt. 

Signed  and  acknowledged  in  the  presence  of: 


The  State  of  Oklahoma, County,  ss. : 

Before  me, ,  a in  and  for  said  county  and  State, 

on  this day  of ,  19 — ,  personally  appeared , 

as  trustee  of  the  estate  of ,  bankrupt,  to  me  known  to  be 

the  identical  person  who  executed  the  within  and  foregoing  in- 
strument, and  acknowledged  to  me  that  he  executed  the  same 
as  his  free  and  voluntary  act  and  deed,  for  the  uses  and  pur- 
poses therein  set  forth,  and  as  the  free  and  voluntary  act  and 
deed  of  said  trustee  for  the  uses  and  purposes  therein  set  forth. 


My  commission  expires .  Notary  Public. 


CHAPTER    XI. 

CONVEYANCES. 

1.  Conveyancing. 

2.  Conveyance — SrEciFic  Performance  of. 

3.  Con\t.yance — Cancellation  of. 

4.  Conveyance — Reformation  op. 

5.  Conveyance — Fraud  of  Creditors. 

1.     CONVEYANCING. 


SECTIOX 

385.  Who     may    hold,     convey    and 

mortgage  real  estate. 

386.  Witnesses  to  execution  of  con- 

veyances  not   necessary. 

387.  Attorney   in   fact   may  execute 

instrument,    when. 

388.  Deed    or    instrument    affecting 

real  estate  must  be   in  writ- 
ing. 

389.  When    husband    or    wife    may 

convey  homestead. 

390.  Husband   conveying   homestead 

concluded    thereby. 

391.  Who    estopped    from    denying 

validity  of  deed. 

392.  Deeds  executed  by  sheriff,  how 

acknowledged. 

393.  Husband  or  wife  may  deed  real 

estate  not  the  homestead. 

394.  Words   relating  to   real   estate 

defined. 

395.  Contract    valid    against    third 

persons,  when. 

396.  What       conveyances       deemed 

mortgages. 

397.  Separate    instruments    deemed 

parts   of   each    other. 

398.  Innocent  purchasers   protected, 

when. 

399.  Conveyance   deemed  an  assign- 

ment, when. 


SECTION 

400.  Quitclaim   deed — Wliat   is  con- 

veyed thereby. 

401.  Warranty   deed — What   is  con- 

veyed thereby. 

402.  Power   of    attorney — How   exe- 

cuted— Where  filed. 

403.  What  grantor  is  affected  where 

land    recovered    by    action — 
Grantors  to  be  notified. 

404.  Who  may  recover  on  warranty 

— Attorneys'  fees. 

405.  Procedure  when  Avarrantor  fails 

to  defend   action. 

406.  What   instruments   entitled   to 

record. 

407.  Duty     of     register     of     deeds 

when     instrument     presented 
for  filing. 

408.  What    instruments    of    convey- 

ance may  be  used  as  evidence 
in  court. 

409.  Requirements    as    to    printing; 

and  writing  in  a  conveyance. 

410.  Corporation     may     convey     by 

attorney,  when. 

411.  What  instruments  executed  by 

a  corporation  or  its  attorney 
valid. 

412.  Conveyance    void    for    w-ant    of 

consideration,  when. 


321 


§385 


mebwine's  trial  of  title  to  land. 


322 


SECTION 

413.  Every    estate    in    land    deemed 

fee   simple  unless  limited  by 
special  words. 

414.  Will  may  be  recorded  with  like 

effect  as  deed,  when. 

415.  Judgment    may    be    filed    and 

recorded — Effect  of. 

416.  Minor   may   hold   title   to    real 

estate,  when. 

417.  Form     of    acknowledgment    of 

any  instrument  affecting  real 
estate. 

418.  Before  whom  acknowledgments 

may  be  taken. 

419.  Certain     acknowledgments     le- 

galized by  Legislature. 

420.  Statutory  form  for  deed. 

421.  Difference   in   form  for   a  wai-- 

ranty   and  quitclaim   deed. 

422.  The    manner    in    which    instru- 

ments of  conveyance   by  cor- 
poration must  be  executed. 


SECTION 

423.  When     corporate     seal     to     be 

attached  to  instrument. 

424.  Statutory  form  for  acknowledg- 

ment by  corporation. 

425.  Form   for   deea   by    a    corpora- 

tion. 

426.  Form   for    deed   conveying   life 

estate   with    remainder    over. 

427.  Form    for    deed    conveying    re- 

mainder estate  subject  to  a 
life   estate. 

428.  Form   for   deed   by   tenant   for 

life. 

429.  Form  for  power  of  attorney  to 

sell  and  convey  real  estate, 
price  and  terms  discretion- 
ary. 

430.  Form    for    petition    for    breach 

of   covenant   of    seizin. 

431.  Form    for    petition    for   breach 

of  covenant  against  incum- 
bent. 


Sec.  385.    Who  may  hold,  convey  and  mortgage  real  estate. 

Male  persons  of  the  age  of  twenty-one  years,  and  female 
persons  of  the  age  of  eighteen  years,  being  otherwise  qualified 
thereto,  and  corporations  to  the  extent  and  in  the  manner 
authorized  by  law,  owning  real  estate  in  this  State,  may 
convey  or  otherwise  dispose  of  or  make  any  contracts  relating 
to  real  estate  or  any  interest  therein:  Provided,  any  persons 
of  whatsoever  age,  who  have  been  legally  married  and  who 
are  otherwise  qualified,  may  dispose  of  and  make  contracts 
relating  to  real  estate  acquired  after  marriage.^ 


1  Snyder,  1.184;  Wilson,  877.  As 
to  power  of  corporation  to  make 
deed  outside  of  its  authorized  au- 
thority, see  Lafi"erty  v.  Evans,  17 
Okla.  247,  87  Pac.  304.  Conveyance 
under  this  statute  considered  most 
strongly  against  the  grantor.  Ed- 
wards V.  Brusha,  18  Okla.  284,  90 
Pac.  727.  This  statute  does  not 
apply  to  the  lands  and  conveyance 
thereof  by  the  Indian  and  freedman. 


The  lands  of  these  people  are  under 
control  of  Federal  law  and  this  law 
has  provided  that  minors,  as  far  as 
their  lands  are  concerned,  do  not 
have  the  power  to  convey  until  they 
have  reached  the  age  of  twenty-one 
and  eighteen,  respectively;  and  a 
minor  within  the  meaning  of  Sees. 
1,  2  and  6  of  the  Act  of  May  27, 
1908  (see  199,  35  Stat.  312,  pt.  1), 
includes    males    under    the    age    of 


323  CONVEYANCE   OP   REAL   ESTATE  §§  386-388 

Sec.   386.    Witnesses   to   the   execution   of   conveyances   not 
necessary. 

No  subscribing  -witness  is  necessary  to  the  validity  of  any 
deed,  mortgage,  contract,  lease,  bond,  or  other  instrument 
conveying,  affecting  or  relating  to  real  estate.- 

Sec.  387.    Attorney  in  fact  may  execute  instrument,  when. 
Any  instrument  affecting  real  estate  may  be  made  by  an 
attorney  in  fact,  duly  appointed  and  empowered  as  herein- 
after provided.^ 

Sec.  388.  Deed  or  instrument  affecting  real  estate  must  be 
in  writing. 
No  deed,  mortgage  or  other  conveyance  relating  to  real 
estate,  or  any  interest  therein,  other  than  for  a  lease  for  a 
period  not  to  exceed  one  year,  will  be  valid  until  reduced 
to  writing  and  subscribed  by  the  grantor;  and  no  deed, 
mortgage  or  contract  relating  to  the  homestead  exempt  by 
law,  except  a  lease  for  a  period  not  exceeding  one  year, 
will  be  valid  unless  in  writing  and  subscribed  by  both  hus- 
band and  wife,  where  both  are  living  and  not  divorced, 
except  as  to  the  extent  hereinafter  provided.* 

twenty-one  years,  and  females  under  some   officer   having   power   to   take 

the   age  of   eighteen  years,  and  the  acknowledgments  of   deeds.      If   the 

marriage    of    such    minor    does    not  assignment  is  made  by  an  attorney 

confer  upon  him  or  her  the  author-  in     fact,     the     power     of     attorney 

ity    to    convey   his    or    her    allotted  must  be  executed  and  acknowledged 

lands    independent    of   the    jurisdic-  in     the     same     manner     as     deeds 

tion  and  supervision  of  the  probate  are  executed  and  acknowledged.    No 

courts    of    the    State.      Jefferson    v.  mere  agent  has  power  or  authority 

Winkler,    26    Okla.    653^     110    Pac.  to  assign  and   acknowledge   the  as- 

755.  signment  of  a  tax   certificate   so  as 

2  Snyder,  1,185;  Wilson,  878.  to    authorize    a    tax    certificate    to 

3  Snyder,  1,186;  Wilson,  879.  A  issue  to  such  assignee.  Wilson  v. 
tax  certificate  represents  an  in-  Wood,  10  Okla.  279,  61  Pac.  1,045. 
terest  in  real  estate,  and  can  only  *  Snyder,  1,187;  Wilson,  880.  As 
be  assigned  so  as  to  entitle  the  to  mortgage  without  wife's  signa- 
assignee  to  a  deed  thereon  by  the  ture,  see  Hall  v.  Powell,  8  Okla. 
assignor  executing  such  instrument  276,  57  Pac.  168.  Note  not  signed 
and  acknowledging  the  same  before  by  wife  but  mortgage  signed  by  her, 


§§  389-391         merwine's  trial  op  title  to  land,  324 

Sec.  389.     When  husband  or  wife  may  convey  homestead. 

Where  the  title  to  the  homestead  is  in  the  husband,  and 
the  wife  voluntarily  abandons  him  for  a  period  of  one  year, 
or  from  any  cause  takes  up  her  residence  out  of  the  State,  he 
may  convey,  mortgage  or  make  any  contract  relating  thereto 
without  being  joined  therein  by  her;  and  where  the  title  to 
the  homestead  is  in  the  wife,  and  the  husband  voluntarily 
abandons  her,  or  from  any  cause  takes  up  his  residence  out 
of  the  State,  for  a  period  of  one  year,  she  may  convey, 
mortgage,  or  make  any  contract  relating  thereto  without 
being  joined  therein  by  him.^ 

Sec.  390.    Husband  conveying-  homestead  concluded  thereby. 

If  the  husband  make  any  deed,  mortgage  or  contract  re- 
lating to  the  homestead  without  being  joined  therein  by  his 
wife,  he  will  be  concluded  thereby  and  the  same  can  only 
be  avoided  by  the  wife;  and  if  the  wife  shall  make  any 
deed,  mortgage  or  contract  relating  to  the  homestead  without 
being  joined  therein  by  the  husband,  she  will  be  concluded 
thereby,  and  the  same  can  only  be  avoided  by  the  husband; 
and  in  either  case,  the  husband  or  wife  entitled  to  avoid 
any  such  deed,  mortgage  or  contract  will  be  concluded  by  a 
failure,  after  due  notice  of  any  suit  in  a  court  of  competent 
jurisdiction,  to  set  forth  his  or  her  right,  title  or  interest 
therein.^ 

Sec.  391.    Who  estopped  from  denying  validity  of  deed. 

Any  person  or  corporation,  having  knowingly  received  and 
accepted  the  benefits,  or  any  part  thereof,  of  any  convey- 
ance, mortgage  or  contract  relating  to  real  estate,  will  be 
concluded  thereby  and  estopped  to  deny  the  validity  of  such 

describing    note    as    signed   by    her,  5  Snyder,      1,180;      Wilson,      882. 

authorized  the  court  to  remove  the  6  Snyder,      1,190;      Wilson,      883. 

mortgage  and  decree  foreclosure  of 
the  homestead.  Bastin  v.  Schaffer, 
15  Okla.  267,  85   Pac.  349. 


325  CONVEYANCE    OF   REAL   ESTATE.  §§  392-394 

conveyance,  mortgage  or  contract  or  the  power  of  authority 
to  make  and  execute  the  same,  except  on  the  ground  of 
fraud;  but  this  paragraph  will  not  apply  to  minors  or  per- 
sons of  unsound  mind  who  pay  or  tender  back  the  amount 
of  such  benefit  received  by  themselves.'^ 

Sec.  392.    Deeds  executed  by  sheriff,  how  acknov/ledged. 

Deeds  executed  by  any  sheriff  or  other  officer,  for  real 
estate  sold  under  execution,  order  of  sale,  or  pursuant  to  any 
order  or  decree  of  court,  must  be  executed,  acknowledged 
and  recorded  in  the  manner  and  with  like  effect  as  other 
deeds.* 

Sec.  393.    Husband   or  wife  may  deed  real  estate  not  the 
homestead. 

The  husband  or  wife  may  convey,  mortgage  or  make  any 
contract  relating  to  any  real  estate  other  than  the  home- 
stead, belonging  to  him  or  her,  as  the  case  may  be,  without 
being  joined  by  the  other  in  such  conveyance,  mortgage  or 
contract.® 

Sec.  394.    Words  relating-  to  real  estate  defined. 

The  words  "land,"  "real  estate"  and  "premises"  when 
used  herein,  or  in  any  instrument  relating  to  real  property, 
are  synonyms,  and  will  be  deemed  to  mean  the  same  thing, 
and  unless  otherwise  qualified,  to  include  lands,  tenements 
and  hereditaments;  and  the  word  "appurtenances,"  unless 
otherwise  qualified,  will  mean  all  improvements  and  every 
right  of  whatever  character  pertaining  to  the  premises 
described. ^° 

"Signature"  or  "subscription"  includes  mark,  when  the 
person  cannot  write,  his  name  being  written  near  it,  and 
written  by  a  person  who  writes  his  own  name  as  a  witness. 

7  Snyder,   1,191;   Wilson,  884.  9  Snyder,     1,193;       Wilson,      886. 

8  Snyder,  1,192;   Wilson,  885.  lo  Snyder,  1,194;  Wilson,  887. 


§  §  395-397  MERWINE  'S   TRIAIv   OF   TITLE   TO   LAND.  326 

The  words  "real  property"  are  coextensive  with  lands, 
tenements  and  hereditaments/^ 

An  officer's  certificate  of  the  grantor's  acknowledgment 
of  the  execution  of  a  deed  filed  for  record,  is  a  sufficient 
compliance  with  the  requirement  of  attestation  by  witnesses 
to  the  grantor's  signature  by  mark.^- 

Sec.  395.     Contract  valid  against  third  persons,  when. 

Except  as  hereinafter  provided,  no  acknowledgment  or 
recording  will  be  necessary  to  the  validity  of  any  deed,  mort- 
gage or  contract  relating  to  real  estate  as  between  the  par- 
ties thereto ;  but  no  deed,  mortgage,  contract,  bond,  lease  or 
other  instrument  relating  to  real  estate,  other  than  a  lease 
for  a  period  not  exceeding  one  year  and  accompanied  by 
actual  possession,  will  be  valid  as  against  third  persons 
unless  acknowledged  and  recorded  as  herein  provided ;  ex- 
cept actual  notice  to  such  third  persons,  shall  be  equivalent 
to  due  acknowledgment  and  recording.^^ 

Sec.  396.     What  conveyances  deemed  mortgages. 

Every  instrument  purporting  to  be  an  absolute  or  qualified 
conveyance  of  real  estate  or  any  interest  therein,  but  in- 
tended to  be  defeasible  or  as  security  for  the  payment  of 
money,  shall  be  deemed  a  mortgage  and  must  be  recorded 
and  foreclosed  as  such.^^ 

Sec.  397.     Separate  instruments  deemed  parts  of  each  other. 

Every  instrument  explanatory  of  any  deed  or  other  writing 
purporting  to  be  a  conveyance,  but  intended  to  be  defeasible 
or  as  security  for  the  payment  of  money,  will  be  deemed  a 

11  Snyder,    2,965;     Wilson,    2,808.  is  Snyder,   1,195;   Wilson,  888. 

12  Campbell     v.     Hart,     122     Pac.  1 4  Snyder,   1,196;    Wilson,  889. 
(Okla.)    127. 


327  CONVEYANCE    OP    REAL   ESTATE.  §§  398-400 

part  thereof,  and  must  be  filed  and  recorded  therewith ;  and 
unless  such  instruments  are  so  filed  and  recorded  together, 
they  and  each  of  them  will  have  no  other  effect  than  an 
unrecorded  mortgage,  and  the  recording  of  the  principal 
instrument  will  secure  no  rights  to  the  holder  thereof/^ 

Sec.  398.    Innocent  purchasers  protected,  when. 

Any  person  purchasing  or  taking  any  security  against  real 
estate  in  good  faith  and  without  notice  from  one  holding 
under  an  instrument  purporting  to  be  a  conveyance,  but 
intended  as  security  for  the  payment  of  money,  and  which  in- 
strument has  been  duly  recorded  without  any  other  instrument 
explanatory  thereof,  will  be  protected  to  the  extent  of  the 
purchase  price  paid  or  actual  outlay  occasioned,  with  lawful 
interest,  against  all  persons  except  those  in  actual  possession 
at  the  time  of  such  purchase  or  outlay.^® 

Sec.  399.     Conveyance  deemed  an  assignment,  when. 

Any  conveyance  other  than  as  above  provided,  by  one 
held  under  an  instrument  purporting  to  be  a  conveyance, 
but  intended  as  security,  will  be  deemed  and  treated  as  an 
assignment  and  transfer  of  the  mortgage  rights  of  an  indebt- 
edness due  the  maker  thereof.^^ 

Sec.  400.     Quitclaim  deed — What  is  conveyed  thereby. 

A  quitclaim  deed,  made  in  substantial  compliance  with 
the  provisions  of  this  chapter,  will  convey  all  the  right,  title 
and  interest  of  the  maker  thereof  in  and  to  the  premises 
therein  described.^* 

15  Snyder,   1,197;   Wilson,  890.  claims    under    a    sheriff's    deed    or 

16  Snyder,  798;   Wilson,  891.  upon     a     judgment     and    execution 

17  Snyder,   1,199;   Wilson,  892.  against    a    debtor,    who    it    is    not 

18  Snyder,  1,201;  Wilson,  894.  shown  ever  had  a  title,  either  in 
Where  the  title  of  a  party  to  real  law  or  equity,  the  title  conveyed  by 
estate  is  evidenced  by  quitclaim  quitclaim  deed  will  be  held  to  be 
deed     and     the     adverse     claimant 


§  401  merwine's  trial  of  title  to  land.  328 

Sec.  401.    Warranty  deed — What  is  conveyed  thereby. 

A  warranty  deed,  made  in  substantial  compliance  with  the 
provisions  of  this  chapter,  will  convey  to  the  grantee,  his 
heirs  or  assigns,  the  whole  interest  of  the  grantor  in  the 
premises  described,  and  will  be  deemed  a  covenant  on  the 
part  of  the  grantor,  that  at  the  time  of  the  making  of  the 
deed  he  is  legally  seized  of  the  indefeasible  estate  in  fee 
simple  of  the  premises  and  has  good  right  and  full  power 
to  convey  the  same;  that  the  same  are  clear  of  all  in- 
cumbrances and  liens,  and  that  he  warrants  to  the  grantee, 
his  heirs  and  assigns,  the  quiet  and  peaceable  possession 
thereof,  and  will  defend  the  title  thereto  against  all  persons 
who  may  lawfully  claim  the  same  and  the  covenants  and 
warranty  will  be  obligatory  and  binding  upon  any  such 
grantor,  his  heirs  and  personal  representatives,  as  if  written 
at  length  in  such  deed.^° 

To  sustain  an  action  for  the  breach  of  a  covenant  for 
quiet  enjoyment  in  a  lease,  it  is  necessary  for  the  plaintiff  to 
show  that  he  has  been  prevented  from  taking  possession  of 
the  leased  premises,  or  that  his  quiet  enjoyment  has  been 
hindered  or  disturbed  by  the  lessor,  or  some  person  deriving 
their  right  or  title  through  him,  or  from  a  paramount  title ;  a 
hindrance  or  disturbance  by  a  mere  intruder  is  not  suffi- 
cient.-" 

Covenants  of  seizin  and  good  right  to  convey  are  synony- 
mous, and,  if  broken  at  all,  are  broken  when  made,  and  an 
actual  eviction  is  unnecessary  to  consummate  the  breach. 

In  an  action  for  breach  of  the  covenants  of  seizin  and  good 
right  to  convey,  an  eviction  need  not  be  alleged;  but  it  is 
sufficient  in  charging  a  breach  to  negative  the  words  of  the 
covenant  generally.-^ 

paramount.      ]Mosier   v.    Monson,    13  -^  Brown     v.     International,     etc., 

Okla.    41,    74    Pac.   90.1.  29   Okla.   .341,   116  Pac.   799. 

19  Snyder,  1,202;  Wilson,  895.  21  Faller      v.      Davis,      118      Pac. 

(Okla.)    382. 


329  CONVEYANCE   OF   REAL   ESTATE.  §§402,403 

Sec.   402.     Power  of  attorney — How   executed — Where  filed. 

A  power  of  attorney  in  fact  for  the  conveyance  of  real 
estate  or  any  conveyance  thereunder,  or  for  the  execution 
or  release  of  any  mortgage  therefor,  must  be  executed,  ac- 
knowledged and  recorded  in  the  manner  required  by  this 
chapter  for  the  execution,  acknowledgment  and  recording  of 
deeds  and  mortgages,  and  must  be  recorded  in  the  county 
where  the  land  is  situated,  and  no  deed,  mortgage  or  release 
of  mortgage  executed  by  an  attorney  in  fact,  will  be  re- 
ceived for  record  or  recorded  until  the  power  under  which 
the  same  is  executed  has  been  duly  filed  for  record  in  the 
same  office ;  and  the  recording  of  any  deed,  mortgage  or 
release  of  mortgage  will  be  of  no  effect  for  any  purposes  until 
the  power  under  which  it  is  executed  has  been  duly  filed  for 
record  in  the  same  office."- 

Sec.  403.    What  grantor  is  affected  where  land  recovered  by 
action — Grantors  to  be  notified. 

In  all  cases  where  there  is  a  recovery  of  land,  or  any 
interest  therein,  adverse  to  any  warranty  deed  thereto,  the 
judgment  by  which  such  recovery  is  had  will  not  be  effective 
or  become  the  basis  of  an  action,  against  previous  grantors 
other  than  those  who  are  parties  thereto,  or  have  been  noti- 
fied in  writing  of  the  pendency  thereof  twenty  days  before 
such  judgment  is  entered. 

In  all  cases  where  an  action  is  brought  against  a  grantee 
to  recover  real  estate  conveyed  to  him  by  warranty  deed,  he 
is  required  to  notify  the  grantor,  or  person  bound  by  the 
warranty,  that  such  suit  has  been  brought,  at  least  twenty 
days  before  the  day  of  trial,  which  notice  must  be  in  writ- 
ing, and  request  such  grantor  or  other  person  to  defend 
against  such  action ;  and  in  case  of  failure  to  give  such 
notice    there    will    be    no    further    liability    upon    such    war- 

22  Snyder,     1,203;     Wilson,     896;    Wilson   v.   Wood,    10   Okla.   279,   61 
Pac.  1,045. 


§§404-407         merwine's  trial  of  title  to  land.  330 

ranty,   except  when  it  is  clearly  shown  that  it  was  impos- 
sible to  make  service  of  such  notice.^^ 

Sec.  404.    Who  may  recover  on  warranty — Attorneys'  fees. 

"Where  any  grantor  applies  in  any  action  to  defend  his 
warranty  or  fails  to  appear  after  due  notice,  the  court  must 
determine  all  the  rights  of  all  the  parties,  and  in  case  the 
recovery  is  adverse  to  the  warranty,  the  warrantee  shall  re- 
cover of  the  warrantor  the  price  of  the  land  paid  for  the 
conveyance  at  the  time  of  the  warranty,  the  value  of  all 
improvements  lost,  if  any,  and  all  suras  necessarily  expended, 
including  reasonable  attorneys'  fees  and  interest  at  the 
rate  of  ten  per  cent,  per  annum  on  all  sums  so  paid  at  the 
time  of  payment.^* 

Sec.  405.    Procedure  when  warrantor  fails  to  defend  action. 

If  a  warrantor,  or  other  person  bound  by  a  warranty,  fails 
to  appear  and  defend  after  due  notice,  as  above  provided, 
the  warrantee  may  defend  the  action  and  recover  in  a  sep- 
arate suit  all  sums  expended  the  same  as  he  might  do  in  the 
same  suit,  as  provided  in  this  chapter.-^ 

Sec.  406.    What  instruments  entitled  to  record. 

No  deed,  mortgage  or  other  instrument  affecting  the  real 
estate  will  be  received  for  record  or  recorded  unless  exe- 
cuted and  acknowledged  in  substantial  compliance  with  the 
provisions  of  this  chapter,  and  the  recording  of  any  such 
instrument  not  so  executed  and  acknowledged  Avill  not  be 
effective  for  any  purpose.-'' 

Sec.  407.    Duty  of  register  of  deeds  when  instrument  pre- 
sented for  filing. 

The  register  of  deeds  is  required  by  law,  whenever  an  in- 
strument is  presented  to  him  for  record,  to  immediately  note 

23STivdpr,    1.204   and    1.205;    Wil-  =5  Snyder,   1,207;   Wilson.  900. 

Bon,  897   and  F9S.  26  Snyder,   1,208;   Wilson,  901. 

2*  Snyder,   1,206;   Wilson,  899. 


331 


CONVEYANCE   OF   REAL   ESTATE.  §§408,409 


on  the  instrument  the  year,  month,  day,  hour  and  minute  of 
receiving  the  same,  and  the  date  of  record  of  such  instru- 
ment will  be  from  the  date  of  filing;  he  is  then  required  to 
enter  the  same  upon  the  receiving  book,  making  all  the 
entries  in  the  approprite  columns,  as  provided  by  law,  and 
must,  as  soon  thereafter  as  practicable,  record  said  instru- 
ment in  the  proper  record,  enter  it  upon  the  proper  indexes, 
and  over  his  signature  and  seal  note  the  book  and  page  upon 
which  said  instrument  is  recorded." 

Sec.  408.  What  instruments  of  conveyance  may  be  used  as 
evidence  in  court. 
All  instruments  affecting  real  estate  and  executed  and 
acknowledged  in  substantial  compliance  herewith  will  be 
received  in  evidence  in  all  courts  without  further  proof  of 
their  execution ;  and  in  all  cases  where  copies  of  other  instru- 
ments might  lawfully  be  used  in  evidence,  copies  of  the  same, 
duly  certified  from  the  records  by  the  register  of  deeds  may  be 
received  in  evidence;  and  if  the  same  need  not  be  recorded 
to  be  valid  for  the  purpose  for  which  such  evidence  is  offered, 
a  copy  duly  verified  by  oath  or  affidavit  of  any  person  know- 
ing the  same  to  be  a  true  copy  may  be  received  in  evidence.^'* 

Sec.  409.    Requirements  as  to  printing  and  writing  in  a  con- 
veyance. 

No  instrument  affecting  the  title  to  real  estate  may  be 
filed  for  record  or  recorded  unless  plainly  printed  or  written 
or  partly  printed  and  partly  written  in  the  English  lan- 
guage.'^ 


27  Snyder,    1,740;     Wilson,    1,284.  29  Snyder,    1,210;    Wilson,    903. 

28  Snyder,     1,209;     Wilson,     902. 


§§  410-413        merwine's  trial  of  title  to  land.  332 

Sec.  410.     Corporation  may  convey  by  attorney,  when. 

Corporations,  as  well  as  individuals,  may  make,  acknowl- 
edge and  deliver  instruments  affecting  real  estate  by  an 
attorney  in  fact.^° 

Sec.  411.    What  instruments  executed  by  a  corporation  or  its 
attorney  valid. 

Every  instrument  affecting  real  estate  or  authorizing  the 
execution  of  any  deed,  mortgage  or  other  instrument  relating 
thereto,  executed  and  acknowledged  by  a  corporation  or  its 
attorney  in  fact,  in  substantial  compliance  with  the  provisions 
of  this  chapter,  will  be  valid  and  binding  upon  the  grantor, 
notwithstanding  any  omission  or  irregularity  in  the  proceed- 
ings of  such  corporation  or  any  of  its  officers  or  members, 
and  without  reference  to  any  provision  in  its  constitution  or 
by-laws.^^ 

Sec.  412.     Conveyance  void  for  want  of  consideration,  when. 

Every  conveyance  of  real  estate  or  any  interest  therein, 
and  every  mortgage  or  other  instrument  in  any  way  affect- 
ing the  same,  made  without  a  fair  and  valuable  consideration, 
or  made  in  bad  faith,  or  for  the  purpose  of  hindering,  delay- 
ing or  defrauding  creditors  will  be  void  as  against  all  per- 
sons to  whom  the  maker  is  at  the  time  indebted  or  under  any 
legal  liability.^^ 

Sec.  413.    Every  estate  in  land  deemed  fee  simple  unless  lim- 
ited by  special  words. 
Every  estate  in  land  which  may  be  granted,  conveyed  or 
demised  by   deed   or  will,   will  be   deemed  an   estate   in   fee 
simple  and  of  inheritance  unless  limited  by  express  words.^^ 

30  Snyder,    1,211;    Wilson,    904.  consideration,    see   Alton   v.    Staten, 

31  Snyder,    1,212;    Wilson,    905.  19    Okla.    252,    91    Pac.    892.      And 

32  Snyder,  1,213;  Wilson,  906.  promise  to  support  grantor  in  fraud 
See,  also,  Kershaw  v.  Willwy,  22  of  creditors,  void,  when,  see  Shelby 
Okla.  677,  98  Pac.  908.  As  to  deed  v.  Siegler,  22  Okla.  799,  98  Pac. 
of   wife    in   fraud    of    creditors,    see  989. 

Jenks  V.  McGowan,  9  Okla.  306,  60  33  gnyder,  4,214;    Wilson,    907. 

Pac.   239.      For   fraud  and  want  of 


333  CONVEYANCE   OF    REAL   ESTATE.  §  §  414-417 

Sec.   414.     Will  may  be  recorded  with  like  effect  as  deed, 
when. 

Any  will  devising  real  estate  or  any  interest  therein,  to- 
gether with  a  copy  of  the  probate  thereof,  duly  certified  by 
the  county  judge,  may  be  filed  and  recorded  in  the  office  of 
the  register  of  deeds,  with  like  effect  as  a  deed  duly  executed 
and  acknowledged.^* 

Sec.  415.  Judgment  may  be  filed  and  recorded — Effect  of. 
Any  judgment  or  decree  of  a  court  of  competent  jurisdic- 
tion finding  and  adjudging  the  rights  of  any  party  to  real 
estate  or  any  interest  therein,  duly  certified,  may  be  filed 
for  record  and  recorded  in  the  office  of  the  register  of  deeds, 
with  like  effect  as  a  deed  duly  executed  and  acknowledged.^^ 

Sec.  416.    Minor  may  hold  title  to  real  estate,  when. 

A  minor  may  take  and  hold  title  to  real  estate,  and  an 
estate  of  freehold  or  inheritance  may  be  made  to  commence 
in  the  future  by  express  provisions  of  the  deed,  and  without 
at  the  same  time  creating  any  intervening  estate.^^ 

Sec.  417.     Form  for  acknowledgment  of  any  instrument  af- 
fecting real  estate. 

An    acknowledgment    by    individuals    of    any    instrument 
affecting  real  estate  must  be  substantially  in  the  following 
form,  to-wit : 
State  of  Oklahoma,  County,  ss. : 

Before  me,  in  and  for  said  county  and  State,  on  this 

day  of  ,  19 — ,  personally  appeared  and 

,  to  me  kno^^^l  to  be  the  identical  person —  who  executed 

the  within  and  foregoing  instrument,  and  acknowledged  to  me 

that executed  the  same  as free  and  voluntary  act 

and  deed  for  the  uses  and  purposes  therein  set  forth." 

34  Snyder,     1,215;      Wilson,     908.  37  Snyder,  1221 ;  Wilson,  914.     As 

35  Snyder,     1,216;      Wilson,     909.       between  the  parties  to  the  mortgage, 
30  Snyder,  1,220;   Wilson,   913.  the   mortgage  is    valid,  though   not 


§§  418-420         merwine's  trial  of  title  to  land. 


334 


Sec.  418.    Before  whom  acknowledgments  may  be  taken. 

Every  acknowledgment,  except  when  taken  by  a  justice  of 
the  peace,  must  be  under  the  seal  of  the  officer  taking  the 
same;  and  when  taken  in  the  State,  may  be  taken  before  a 
justice  of  the  peace  of  the  county  where  the  land  is  situated, 
or  before  any  notary  public,  county  clerk,  clerk  of  the  dis- 
trict court  or  county  judge;  and  when  taken  out  of  the 
State,  it  may  be  taken  before  any  notary  public,  clerk  of  a 
court  of  record,  commissioner  of  deeds  duly  appointed  by 
the  Governor  of  the  State  for  the  county.  State  or  Territory 
where  the  same  is  taken;  and  when  taken  in  any  foreign 
country,  it  may  be  taken  before  any  court  of  record  or 
clerk  of  such  court,  or  before  any  consul  of  the  United 
States.^'^ 

Sec.  419.    Certain  acknowledgments  legalized  by  Legislature. 

In  all  eases  where  heretofore  any  county  judge,  reg- 
ister of  deeds.  United  States  commissioner,  or  United  States 
court  commissioner  has  taken  acknowledgment  of  deeds  or 
other  conveyances  of  real  estate  in  their  respective  counties, 
that  the  same  be  and  are  hereby  legalized  and  made  valid 
and  binding;  and  such  action  will  have  the  same  force  and 
effect  as  if  taken  before  some  officer  heretofore  empowered 
by  the  statute  to  take  acknowledgments.^® 

Sec.  420.    Statutory  form  for  deed. 

A  warranty  deed  to  real  estate  may  be  substantially  in  the 
following  form,  to-wit: 

Know  All  Men  by  These  Presents,  that  ,  part —  of 

the  first  part,  in  consideration  of  the  sum  of  dollars  in 

hand  paid,  the  receipt  of  which  is  hereby  acknowledged,  do — 
hereby  grant,  bargain,  sell  and  convey  unto  the  follow- 

recorded.      Hess    v.    Trig,    8     Okla.  also,  Mosier  v.  IMorason,  13  Okla.  41, 

287,  57   Pac.   159.     And   a  substan-  74  Pac.  905. 

tial    compliance    with    this    statute  38  Snyder,    1,222. 

will  be   sufficient.      Garten   v.   Hud-  39  Snyder,  1,223. 

son,  8  Okla.  631,  58  Pac.  946;   see, 


335  CONVEYANCE    OF   REAL   ESTATE.  §§421,422 

ing   described   real   property   and    premises   situate    in   


County,  State  of  Oklahoma,  to-wit :  (Plere  describe  the  prop- 
erty), together  with  all  the  improvements  thereon  and  the  appur- 
tenances thereunto  belonging,  and  warrant  the  title  to  the  same. 

To  Have  and  to  Hold  said  described  premises  unto  said  part — ■ 

of  the  second  part, heirs  and  assigns   forever,  free,  clear 

and  discharged  of  and  from  all  former  grants,  charges,  taxes, 
judgments,  mortgages  and  other  liens  and  incumbrances  of 
whatsoever  nature. 

Signed  and  delivered  this day  of ,  19 — .*'' 


Sec.  421.  Difference  in  form  for  a  warranty  and  quitclaim 
deed. 
A  quitclaim  deed  to  real  estate  may  be  substantially  the 
same  as  a  warranty  deed,  with  the  word  "quitclaim"  in- 
serted in  connection  with  the  words,  do  hereby  grant,  bar- 
gain, sell  and  convey,  as  follows:  "Do  hereby  quitclaim, 
grant,  bargain,  sell  and  convey,"  and  by  omitting  the  words, 
*'and  warrant  the  title  to  the  same.  "*^ 

Sec.  422.  The  manner  in  which  instruments  of  conveyance 
by  corporation  must  be  executed. 
Every  deed,  or  other  instrument  affecting  real  estate,  made 
by  a  corporation,  must  have  the  name  of  such  corporation 
subscribed  thereto  either  by  an  attorney  in  fact  or  by  the 
president  or  vice-president  of  such  corporation,  and  when 
made  by  a  public  corporation  the  name  of  such  corporation 
must  be  subscribed  by  the  chief  officer  thereof.*^ 


40  Snyder,  1,226;  Wilson,  918.  deed  will  not  be  required  to  be  in 
Eor  form  of  acknowledgment,  see  the  exact  language  of  the  statute. 
Section  417,  supra.  Mosher  v.  Monson,   13   Okla.  41,  74 

41  Snyder,  1,227;  Wilson,  919.     It  Pac.  905. 

has  been   held  that   this   statute   is  *-  Snyder,   1,228 ;   Wilson,  920. 
directory   and   the   language   of  the 


§§  423-425  merwine's  trial  of  title  to  land.  336 

Sec.  423.     When  corporate  seal  to  be  attached  to  instrument. 

Every  deed,  or  other  instrument  affecting  real  estate,  exe- 
cuted by  a  corporation,  except  when  executed  by  an  attorney 
in  fact,  must  be  attested  by  the  secretary  or  clerk  of  such 
corporation  with  the  corporate  seal  attached.*^ 

Sec.    424.     Statutory   form   for    acknowledgment   by   corpo- 
ration. 

Every  deed,  or  other  instrument  affecting  real  estate,  exe- 
cuted by  a  corporation,  must  be  acknowledged  by  the  officer 
or  person  subscribing  the  name  of  the  corporation  thereto, 
which  acknowledgment  must  be  substantially  in  the  following 
form,  to- wit : 
State  of  Oklahoma,  County,  ss. : 

Before  me,  a in  and  for  said  county  and  State,  on  this 

day  of ,  19 — ,  personally  appeared ,  to  me 

known  to  be  the  identical  person  who  subscribed  the  name  of  the 
maker  thereof  to  the  foregoing  instrument  as  its  (attorney  in 
fact,  president,  vice-president,  or  mayor,  as  the  case  may  be) 
and  acknowledged  to  me  that  he  executed  the  same  as  his  free 
and  voluntary  act  and  deed,  and  as  the  free  and  voluntary  act 
and  deed  of  such  corporation,  for  the  uses  and  purposes  therein 

set  forth.*^  , 

Notary  Public. 

Sec.  425.    Form  for  a  deed  by  a  corporation. 

Know  All  ]\Ien  by  These  Presents,  that  the ,  by  its 

president,  duly  authorized  by  resolution  entered  upon  the  min- 
utes of  said  company,  party  of  the  first  part,  in  consideration 

of  the  sum  of dollars,  in  hand  paid,  the  receipt  of  which 

is   hereby   acknowledged,    do   hereby   grant,    bargain,    sell    and 

convey  unto  the  following  described  real  property  and 

premises,  situated  in County,  State  of  Oklahoma,  to-wit: 

(Description),  together  with  all  the  improvements  thereon  and 

43  Snyder,   1,229;    Wilson,  921.  **  Snyder,  1,230;   Wilson,   922.     . 


337 


CONVEYANCE    OF   REAL   ESTATE.  §  426 


the  appurtenances  thereunto  belonging,  and  warrant  the  title  to 

the  same. 

To  Have  and  to  Hold  said  described  premises  unto  the  said 

party  of  the  second  part,  heirs  and  assigns  forever,  free, 

clear  and  discharged  of  and  from  all  former  grants,  charges, 
taxes,  judgments,  mortgages  and  other  liens  and  incumbrances 
of  whatsoever  nature. 

Signed  and  delivered  this day  of ,  19—. 

State  of  Oklahoma, County,  ss. : 

Before  me,  in  and  for  said  county  and  State,  on  this 

(Jay  of ,  19 — ,  personally  appeared  ,  to  me 


known  to  be  the  identical  person  who  subscribed  the  name  of 

the  maker  thereof  to  the  foregoing  instrument  as  its ,  and 

acknowledged  to  me  that  he  executed  the  same  as  his  free  and 
voluntary  act  and  deed  and  as  the  free  and  voluntary  act  and 
deed  of  such  corporation  for  the  uses  and  purposes  therein  set 

forth.*^ ' 

]\Ty  commission  expires .  Notary  Public. 

Sec.    426.     Form   for   deed   conveying   life   estate,    with   re- 
mainder over. 

Know  All  ]\Ien  by  These  Presents,  that  ,  party  of 

the  first  part,  in  consideration  of  the  sum  of  dollars  in 

hand  paid,  the  receipt  of  which  is  hereby  acknowledged,  do- 
hereby  grant,  bargain,  sell  and  convey  unto the  following 

described  real  property  and  premises,  situate  in County, 

State  of  Oklahoma,  to-wit:  (Description),  together  with  all  the 
improvements  thereon  and  the  appurtenances  thereunto  belong- 
ing, and  warrant  the  title  to  the  same. 

To  Have  and  to  Hold  said  described  premises  unto  the  said 

party  of  the  second  part,  beirs  and  assigns  forever,  for 

and  during  the  natural  life  of  said  ,  and  upon  his  death 

unto  the  said  ,  his  heirs  and  assigns  forever,  free,  clear 

and  discharged  of  and  from  all  former  grants,  charges,  taxes, 

45  Snyder,  1,226  and  1,230. 


§427 


merwine's  trial  of  title  to  land.  338 


judgments,  mortgages  and  other  liens  and  incumbrances  of  what- 
soever nature. 

Signed  and  delivered  this  day  of ,  19—. 

State  of  Oklahoma, County,  ss. : 

3efore  ,  in  and  for  said  county  and  State,  on 

this day  of ,  19—,  personally  appeared ,  to 

me  known  to  be  the  identical  person —  who  executed  the  within 

and  foregoing  instrument,  and  acknowledged  to  me  that • 

executed  the  same  as free  and  voluntary  act  and  deed  for 

the  uses  and  purposes  therein  set  forth. 

"  > 

My  commission  expires  .  Notary  Puhhc. 

Sec.  427.    Form  for  deed  conveying  remainder  estate,  subject 
to  a  life  estate. 

Know  All  Men  by  These  Presents,  that  whereas, ,  of 

^  the  grantor,  is  the  owner  of  an  estate  in  remainder  in 

the  real  property  hereinafter  described,  subject  to  an  estate  for 

the  life  of  one  ,  which  is  vested  in  said ,  and  that 

part—  of  the  first  part,  in  consideration  of  the  sum  of 

dollars  in  hand  paid,  the  receipt  of  which  is  hereby  ac- 
knowledged, do—  hereby  grant,  bargain,  sell  and  convey  unto 

the  estate  in  remainder  of  said  grantor  in  and  to  the 

following  described  real  property  situate  in  the  County, 

State  of  Oklahoma,  to-wit:  (Description),  together  with  all  the 
improvements  thereon  and  the  appurtenances  thereunto  belong- 
ing, and  warrant  the  title  to  the  same. 

To   Have   and   to   HoiiO   the   said   described   premises   unto 

,  part —  of  the  second  part,   heirs  and  assigns 

forever,  free,  clear  and  discharged  of  and  from  all  former 
grants,  charges,  taxes,  judgments,  mortgages  and  other  liens  and 
incumbrances  of  whatsoever  nature. 

Signed  and  delivered  this day  of ,  19 — . 


339  CONVEYANCE   OF   REAL   ESTATE. 


§428 


State  of  Oklahoma, County,  ss. : 

Before  me, ,  a in  and  for  said  county  and  State, 

on  this day  of ,  19—,  personally  appeared , 

to  me  known  to  be  the  identical  person—  who  executed  the 
within  and  foregoing  instrument  and  acknowledged  to  me  that 

executed  the  same  as free  and  voluntary  act  and 

deed  for  the  uses  and  purposes  therein  set  forth. 


My  commission  expires .  Notary  PuUic. 

Sec.  428.    Form  for  deed  by  tenant  for  life. 

Know  All  ]\Ien  by  These  Presents,  that  ,  part—  of 

the  first  part,  in  consideration  of  the  sum  of  dollars  m 

hand  paid,  the  receipt  of  which  is  hereby  acknowledged,  do- 
hereby  grant,  bargain,  sell  and  convey  unto all  the  estate, 

title  and  interest  of  said  grantor,  being  an  estate  for  and  during 
the  natural  life  of  said  grantor,  in  and  to  the  following  described 

real    estate   situated    in    County,    State    of    Oklahoma, 

to-wit:  (Description),  together  with  all  the  improvements  thereon 
and  the   appurtenances  thereunto  belonging,   and  warrant  the 

title  to  the  same. 

To  Have  and  to  Hold  said   described   premises  unto  said 

part—  of  the  second  part,  heirs  and  assigns,   for  and 

during  the  natural  life  of  said  grantor,  free,  clear  and  discharged 
of  and  from  all  former  grants,  taxes,  judgments,  mortgages  and 
other  liens  and  incumbrances  of  whatsoever  nature. 

Signed  and  delivered  this day  of ,  19—. 

State  of  Oklahoma, County,  ss. : 

Before  me,  in  and  for  said  county  and  State,  on  this 

(Jay  of ,  19—,  personally  appeared  ,  to  me 


known  to  be  the  identical  person  who  executed  the  within  and 
foregoing  instrument,  and  acknowledged  to  me  that exe- 
cuted the  same  as  free  and  voluntary  act  and  deed  for 

the  uses  and  purposes  therein  set  forth. 

^ '     J 

My  commission  expires •  Notary  Public. 


§§429,430         merwine's  trial  of  title  to  land.  340 

Sec.  429.     Form  for  power  of  attorney  to  sell  and  convey 
real  estate,  price  and  terms  discretionary. 

Know  All  Men  by  These  Presents,  that  I, of , 

Oklahoma,  do  hereby  make,  constitute  and  appoint  ,  of 

,  Oklahoma,  my  true  and  lawful  attorney  in  fact,  for  me 

and  in  my  name,  place  and  stead,  to  bargain,  sell  and  convey  in 
fee  simple  by  deed,  with  or  without  covenants  of  general  v/ar- 
ranty,  or  other  covenants  usual  or  customary  in  a  warranty  deed, 
or  buy  land,  contract  for  on  such  price  and  upon  such  terms  of 
credit,  and  to  such  person  or  persons,  as  my  said  attorney  shall 
think  fit,   the  whole  or  any  part   of  any  lands,  tenements  or 

hereditaments  owned  by  me  in  County  in  the  State  of 

Oklahoma,  or  any  interest  therein  : 

To  pay  and  satisfy  all  mortgages,  incumbrances,  taxes  and 
assessments  that  may  be  a  lien  or  charge  upon  any  of  said  lands, 
tenements  or  hereditaments;  to  ratify  payment  of  the  purchase 
money  of  any  and  all  lands  so  sold,  and  of  any  and  all  prom- 
issory notes  and  bonds  received  in  payment  therefor,  and  to 
satisfy  and  discharge  any  and  all  mortgages  securing  said  pur- 
chase money. 

Signed  and  delivered  this day  of ,  19 — . 


State  of  Oklahoma, County,  ss. : 

Before  me,  in  and  for  said  county  and  State,  on  this 

day  of ,  19 — ,  personally  appeared  ,  to  me 


known  to  be  the  identical  person  who  executed  the  within  and 
foregoing  instrument,  and  acknowledged  to  me  that exe- 
cuted the  same  as  free  and  voluntary  act  and  deed  for 

the  uses  and  purposes  therein  set  forth. 


My  commission  expires .  Notary  Public. 

Sec.  430.     Form  for  petition  for  breach  of  covenant  of  seizin. 
District  Court,  County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

,  Defendant. 


341  CONVEYANCE   OF    REAL   ESTATE.  §  430 

Comes  now ,  plaintiff  herein,  and  for  his  cause  of  action 

against  the  defendant  herein,  alleges  and  states : 

1.  That  on  day  of  ,  19 — ,  plaintiff  purchased 

from  the  defendant  the  following  real  estate,  situate  in  

County,  State  of  Oklahoma,  to-wit:  (Here  describe  it),  and  paid 

said  defendant  for  said  real  estate  the  sum  of  dollars, 

and  said  defendant  executed  and  delivered  to  plaintiff  his  certain 

warranty  deed  signed  by  said  defendant  and  ,  his  wife, 

on  the day  of ,  19 — ,  thereby  conveying  said  prem- 
ises to  this  plaintiff  in  fee  simple. 

2.  That  said  instruments  of  conveyance  contained  a  covenant 
as  follows:  (Here  insert  the  covenant  complained  of.) 

3.  That  at  the  time  of  the  execution  and  delivery  of  said  deed 
by  said  defendant  to  plaintiff  said  defendant  was  not  possessed 
of  nor  was  the  owner  of  a  good  and  sufficient  title  to  said  real 

estate  above  described ;  but,  on  the  contrary,  one was  the 

true  and  lawful  owner  of  a  title  paramount  to  that  of  said  de- 
fendant, and  that  by  reason  of  said  paramount  title  so  owned 

by  said ,  this  plaintiff  was  ousted  and  dispossessed  of  said 

premises  by  due  course  of  law  by  said  ,  and  that  the 

covenant  so  made  as  hereinbefore  stated  has  been  wholly  broken 
by  the  said  defendant. 

4.  That,  by  reason  of  the  premises  and  all  the  facts  herein 
stated  and  of  the  breach  of  covenant  by  said  defendant,  plaintiff 
has  sustained  damages  in  the  sum  of dollars. 

Wherefore  plaintiff,  the  premises  considered,  prays  judgment 

against  said  defendant  for  said  sum  of  dollars,  and  for 

his  costs  herein  expended,  and  for  such  other  and  further  relief 
as  may  be  proper.**' 


Attorneys  for  Defendant. 


4«  Where  there  has  been  a  breach  statutes    of    this    State    made    and 

of  covenant  of  \varrantj%  each  pre-  provided.      See    Snyder,    1,204    and 

vious  warrantor   should  be  made  a  1,205;   Wilson,  897  and  898. 
party  and  relief  asked  as  under  the 


§  431  MEKWINE  'S   TRIAL   OF   TITLE   TO   LAND.  342 

Sec.  431.     Form  for  petition  for  breach  of  covenant  against 
incumbrance. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

,  Defendant. 

Comes  now  plaintiff  herein,  and,  for  cause  of  action  against 
the  defendant,  alleges  and  states: 

1.  That  on  or  about  the day  of ,  19—,  the  de- 
fendant, in  consideration  of  the  sum  of dollars,  by  deed 

conveyed  to  the  plaintiff  in  fee  simple  the  following  described 

real  estate,  situated  in County,  State  of  Oklahoma,  to-wit : 

(Here  describe  it.) 

2.  That  said  deed  was  in  form  as  provided  by  the  statutes 
of  the  State  of  Oklahoma  and  a  general  warranty  deed,  a  copy 
of  which  is  hereto  attached,  marked  "Exhibit  A"  and  made  a 
part  hereof. 

3.  That  by  the  terms  of  said  deed  said  deed  contained  a  cove- 
nant on  the  part  of  the  defendant  by  which  he  for  himself,  his 
heirs,  executors  and  administrators,  covenanted  and  agreed  to 
and  with  the  plaintiff,  his  heirs  and  assigns,  that  said  premises 
were  then  free,  clear  and  discharged  of  all  incumbrances  what- 
soever. 

4.  That  at  the  time  of  the  making  and  delivery  of  said  deed 
said  premises  were  not  free  of  incumbrances,  but,  on  the  con- 
trary, were  subject  to  the  lien  of  a   judgment  recovered  by 

against  ,  in  the  court  of  County, 

State  of  Oklahoma,  in  cause  number on  the  docket  of  said 

court,  for  the  sum  of dollars. 

5.  That,  by  reason  thereof,  plaintiff  was  obliged  to  pay,  and 

did  pay,  on  the day  of ,  19—,  the  sum  of 

dollars  for  the  purpose  of  extinguishing  said  incumbrances. 

6.  That  no  part  of  said  sum  has  been  repaid  to  plaintiff. 
Wherefore,  plaintiff  prays,  the  premises  considered,  judgment 

for  the  sum  of dollars,  with  interest  from  the day 

of ,  19—,  and  for  all  proper  relief. 

■ -, 

Attorneys  for  Plaintiff. 


us 


CONVEYANCE   OF   REAL   ESTATE. 


2.  THE  PROCEDURE  BY  WHICH  A  CONTRACT  FOR 
THE  PURCHASE  AND  SALE  OF  REAL  ESTATE  IS 
SPECIFICALLY  ENFORCED— THE  STATUTE  OF 
FRAUDS. 


SECTION 

432.  Preliminary    statement. 

433.  Proper  parties. 

434.  Contract  to  be  performed  must 

be  just  and  fair  in  all  its 
parts. 

435.  Contract    must   not   be    uncon- 

scionable. 

436.  It  must  be  certain  in  its  terms. 

437.  It    must    be    possible    to    per- 

form it. 

438.  Contracts   specifically   enforced 

though  venaee  at  fault. 

439.  Contract    optional    as    to    one 

party  optional  as  to  both. 

440.  Defective      description      cured, 

when — Vendor  estopped  to 
object,  when. 

441.  Contract     by     agent     without 

naming  principal  cannot  be 
specifically  enforced. 

Time  not  the  essence  of  a  con- 
tract, when. 

Performance  will  not  be  de- 
creed where  title  is  defective. 

Title,  unless  refused  by  pur- 
chaser, precludes  an  action 
by  him  for  specific  perform- 
ance. 

The  evidence  required  in  proof 
of  the  contract. 

Evidence — Tender  of  abstracts 
— Affidavits  as  part  of  ab- 
stract may  be  evidence,  when. 

The  statute  of  frauds. 

The  statute  of  frauds — The 
writing  excludes  all  other 
negotiations. 

Statute  of  frauds — Contracts 
made  by  agent  of  owner  of 
real  estate. 

Statute  of  frauds — Part  per- 
formance satisfies  the  statute 
— Possession. 


442. 


443. 


444. 


445. 


446. 


447. 

448. 


449. 


450. 


SECTION 

451.  Statute  of  frauds — Verbal  con- 

tract partly  performed  may 
be  specifically  enforced. 

452.  Statute  of  frauds — Description 

defective — Undisclosed  prin- 
cipal. 

453.  Statute  of  frauds — The  parties 

to  a  written  contract — Within 
the  statute  contract  may  not 
modify   its  terms  orally. 

454.  Statute     of     frauds — Contract 

may  be  made  partly  by  let- 
ters,  writing   and  telegrams. 

455.  Statute  of  frauds — A  receipt  is 

not  sufficient  to  satisfy  the 
statute. 

456.  Bond  to   build  may  be  specifi- 

cally enforced,  when. 

457.  An    agreement    to    dispose    of 

property  by  will  specifically 
enforced,    when. 

458.  Compensation      allowed      when 

specific  performance  cannot 
be  decreed. 

459.  Decree   of   court   in   default  of 

deed  to  operate  as  a  convey- 
ance— Sherifi'  may  make  con- 
veyance. 

460.  Decree    may   contain    terms    of 

mortgage  agreed  upon  by 
contract. 

461.  The  procedure  where  the  stat- 

ute of  franids  is  interposed 
as   a   detense. 

462.  The  venue  of  the  acti'on. 

463.  The  procedure  by  Avhich  a  con- 

tract for  the  sale  of  real 
estate  is  specifically  enforced 
— Petition  by  vendor  to  com- 
pel vendee  to  complete  con- 
tract of  purchase. 

464.  The     petition     by     vendee     to 

compel  vendor  to  make  deed. 


§§  432-434        merwine's  trial  of  title  to  land.  344 

SECTION  SECTION 

465.  Petition     to    enforce    perform-       468.  Form    for    petition    to    compel 

ance    of    verbal    contract    of  specific  performance  of  agree- 

sale.  ment    for    exchange    of    prop- 

466.  Another    form    for    petition    by  erty. 

vendor     against     vendee     for  409.  The    decree    awarding    specific 
specific  performance.  performance     of     a     contract 

407.  Another    form    of    petition    by  for  the  purchase  and  sale  of 

vendee     against     vendor      to  real  estate, 

compel    performance    of    oral  470.  Form    where    sheriff    executes 
contract  of   sale.  deed. 

Sec.  432.     Preliminary  statement. 

The  courts  of  this  State  have  not  been  called  upon  to  pass 
upon  questions  relating  to  the  practice  on  the  subject  of 
specific  performance.  The  practice  on  the  subject  is  prac- 
tically alike  everywhere,  and  the  practitioner  is  referred  to 
the  standard  textbooks  on  the  subject  of  pleading  and  prac- 
tice for  the  law  and  procedure  connected  with  specific  per- 
formance.^ 

Sec.  433.    Proper  parties. 

A  subsequent  owner  of  the  land  is  the  proper  party  against 
whom  to  enforce  a  contract  made  by  the  prior  owner  of  the 
fee.^  A  court  of  equity  cannot  enforce  specific  performance 
of  a  contract  to  sell  real  estate  against  several  joint  owners 
where  all  the  joint  owners  were  not  parties  to  the  con- 
tract.^ 

Sec.  434.  Contract  to  be  performed  must  be  just  and  fair  in 
all  its  parts. 

Upon  this  subject  our  Supreme  Court,  in  a  well  considered 
case,  has  said: 

"That  a  contract  to  be  subject  to  specific  performance 
must  be  reasonably  certain  as  to  its  subject-matter,  its  stipu- 
lations, its  purposes,  its  parties,  and  the  circumstances  under 

1  See  Bates'  Pleading  and  Practice,  -  Kolatchney     v.      Galbreath,     26 

Forms    and    Precedents;     Kinkead's  Okla.   757,    110   Pac.   902. 

Code     Pleading;      Kinkead's     Court  3  Gault  v.  Pyles,   19  Okla.  445,  92 

[Practice;    Whittaker'g   Code  Forms.  Pac.  175.         ' 


345  CONVEYANCE   OF   REAL   ESTATE.  §§  435-437 

which  it  is  made.  It  must  be,  in  general,  mutual  in  its 
obligations  and  in  its  remedy,  and  perfectly  fair,  equal  and 
just  in  its  terms  and  its  circumstances,  and  be  such  that  the 
remedy  of  specific  performance  will  not  be  harsh  or  oppres- 
sive. A  rule  of  unexceptional  application  is  that  specific 
performance  will  not  be  awarded  unless  the  contract  is  cer- 
tain, fair  and  just  in  all  its  parts,  and  any  fact  showing  that 
the  contract  is  unfair,  unjust  and  against  good  conscience, 
will  justify  the  court  in  refusing  such  decree,  although  the 
same,  if  duly  executed,  would  present  no  sufficient  ground  for 
cancellation,  or  would  be  enforceable  at  law.* 

Sec.  435.     Contract  must  not  be  unconscionable. 

Equity  will  not  enforce  an  unconscionable  contract ;  but 
the  mere  fact  that  one  provision  of  a  legal  contract,  or  even 
the  entire  contract  is  more  favorable  to  one  party  than  to 
the  other,  does  not  ordinarily  render  it  unconscionable.^ 

Sec.  436.    It  must  be  certain  in  its  terms. 

A  contract  which  a  court  of  equity  is  called  upon  to  spe- 
cifically enforce,  must  be  certain  in  its  terms.  If  the  descrip- 
tion of  the  property  agreed  to  be  sold  is  so  vague  and 
indefinite  in  the  contract  as  not  to  be  identified  with  the 
property  agreed  to  be  conveyed,  specific  performance  will  be 
denied.^ 

Sec.  437.    It  must  be  possible  to  perform  it. 

No  action  can  be  maintained  for  the  specific  performance 
of  a  contract  to  convey  real  estate  where  it  is  impossible  to 
perform  such  contract.'^ 

4  Superior    v.    Mehlin,    25     Okla.  "  Channto   v.    Gas,   62    Kan.    752, 

809,     108     Pac.     545,     quoted     from  109   Pac.   398. 

Pomeroy's    Equi.    Jur.,    Sec.     1.405,  6  Powers   v.   Rude,    14   Okla.    381, 

citing  Dalzell  v.  Dueber,   149  U.   8.  79  Pac.  90;    Ferguson  v.  Blaekwell, 

315,    13    Sup.    Ct.    886,    37    L.    Ed.  8   Okla.  489,  58  Pac.  647. 

749;    Fee.    Oil   Co.   v.   Western,   112  7  Xeuforth   v.  Hall,   6   Kan.   App. 

Fed.    373;    Ferguson    v.    Blaekwell,  ^02,  51  Pac.  573. 
8  Okla.  489,  58  Pac.  647. 


§§438,439        merwine's  trial  of  title  to  land. 


346 


Sec.  438.     Contracts  specifically  enforced  though  vendee  at 
fault. 

Equity  treats  things  agreed  to  be  done  as  actually  per- 
formed, and  when  real  estate  is  sold,  under  a  valid  contract, 
the  purchase  money  to  be  paid  in  part,  and  the  deed  exe- 
cuted at  a  future  day,  the  equitable  title  passes  at  once  to 
the  vendee  and  equity  treats  the  vendor  as  trustee  for  the 
purchaser  of  the  estate  sold,  and  the  purchaser  as  trustee  for 
the  purchase  money  for  the  vendor. 

Where  the  language  of  the  contract  is  that  the  vendor 
"has  this  day  sold  and  agreed  to  convey"  to  the  vedee  his 
"building  and  lot,"  it  clearly  imports  a  binding  contract  of 
sale  then  executed  and  consummated.  By  such  terms  the 
title  in  equity  passes  from  the  date  of  the  contract.  ^  The 
contract  is  not  for  a  sale,  only  for  a  conveyance  at  a 
future  day.  The  whole  foundation  of  this  doctrine  of  equity 
is  that  the  equitable  title  and  interest  pass  by  the  contract  of 
sale,  and  from  the  time  of  its  execution,  and  it  contemplates 
delivery  of  possession  as  well  as  payment  of  the  purchase 
money,  and  a  conveyance  at  a  future  period.  Where  the 
party  seeking  to  enforce  the  contract  had  in  time  complied 
with  all  its  terms,  equity  will  compel  specific  performance 
in  his  favor,  though  the  other  party  has  made  default  in 
time.* 

Sec.  439.     Contract  optional  as  to  one  party  optional  as  to 
both. 

The  general  rule  in  such  cases  is  that  contracts  not  per- 
formed, optional  to  one  of  the  parties,  are  optional  to  both.® 
A  court  of  equity  will  not  do  a  vain  and  useless  thing  by 
rendering  a  decree  settling  the  rights  of  parties  which  one 
of  them  at  will  may  set  aside.  This  rule  is  enforced  where, 
under  the   cancellation   clause   of   an   instrument,    one   party 

8  Dunn  V.  Yakish,    10   Okla.    3S8,  Huggins  v.   Daley,  99  Fed.  606,  40 

61   Pac.   926.  C.    C.    A.     12,    48    L.    R.    A.    320; 

9Kolatchney     v.     Galbreath,     26  Reece    v.    Zinn,    103    Fed.   97;    Fed. 

Okla.    757,    110   Pac.    904;    Venture  Oil   Co.   v.   Western,    121    Fed.   674, 

V.  Fretts,  152  Pa.  451,  21  Ail.  732;  57  C.  C.  A.'428. 


347  CONVEYANCE   OF   REAL   ESTATE.  §  440 

would  have  it  in  his  power  to  nullify  the  decree  by  exer- 
cising his  right  thereunder  not  to  proceed  further.^** 

This  is  following  the  well  known  rule  that  a  court  of  equity 
never  interferes  where  the  power  of  revocation  exists.  But 
while  the  reservation  of  the  right  to  cancel  is  not  an  in- 
firmity which  renders  the  contract  void  ah  initio,  but  it  de- 
prives the  party  for  whose  benefit  it  was  made  of  relief  in 
equity  in  the  nature  of  a  specific  performance." 

Sec.  440.  Defective  description  cured,  when — Vendor  es- 
topped to  object,  when. 
In  an  action  for  the  performance  of  a  contract  for  the 
conveyance  of  land,  where  the  vendor  in  the  contract  had 
incorrectly  described  the  land,  the  defective  description  was 
cured  by  putting  the  purchaser  in  possession;  and  in  such 
action  where  it  appeared  from  the  evidence  that  the  pur- 
chasers who  were  so  placed  in  possession  under  the  contract, 
continued  in  possession  until  the  action  was  brought,  and 
received  the  owner's  shares  of  the  crops  raised  on  the  land, 
after  they  knew  the  condition  of  the  legal  title,  they  were 
estopped  from  setting  up  alleged  defects  in  the  title,  where 
it  further  appeared  at  the  trial  that  the  plaintiff  was  able 
to  convey  the  title  free  from  doubt.  In  an  action,  to  spe- 
cifically perform  a  contract,  where  there  are  liens  of  an  in- 
considerable amount  on  the  land,  which  the  court  provides 
shall  be  discharged  out  of  the  purchase  money,  the  vendor 
has  no  cause  to  complain.^^ 

10  Kolatchney  v.  Galbreath,  26  v.  Galindo,  59  Cal.  28,  43  Am.  Rep. 
Okla.   757,   110  Pac.   904.  239. 

11  Express  v.  Railroad,  99  U.  S.  12  Keeper  v.  Yoacum,  84  Kan. 
191,  25  L.  Ed.  319;  Tausig  v.  554,  114  Pac.  1,064;  Borwn  v. 
■Corbin,  142  Fed.  660,  73  C.  C.  A.  Ward,  110  la.  123,  81  N.  W.  247; 
656;  Solomon  v.  Wilmington,  142  Work  v.  Welsh,  100  111.  468,  43 
N.  C.  439,  55  S.  E.  300,  6  L.  R.  A..  .X.  E.  719;  Ottumwa  v.  McWilliams, 
N.S.,  391;  Rust  V.  Conrad,  47  71  la.  164,  32  X.  W.  315;  Engle 
Mich.  449,  11  N.  W.  265,  41  Am.  v.  White,  104  Mich.  15,  02  N.  W. 
Rep.    720;     Knight    v.    Indian,    47  154. 

Ind.  105,  17  Am.  Rep,  692;   Sturgis 


§§441,442        merwine's  trial  of  title  to  land.  348 

Sec.  441.     Contract  by  agent  without  naming  principal  can- 
not be  specifically  enforced. 

Under  the  statute  requiring  contracts  for  the  sale  of  land 
to  be  evidenced  by  writing,  where  a  written  agreement  for 
such  a  sale,  says  that  one  of  the  two  persons  by  whom  it  is 
made  incurs  no  individual  liability,  but  acts  merely  as  the 
agent  of  someone  else,  who  is  not  named  or  described,  specific 
performance  thereof  cannot  be  compelled  at  the  suit  of  the 
principal,  if  his  relation  to  the  transaction  can  only  be  proved 
by  parol  evidence.^^ 

Sec.  442.    Time  not  the  essence  of  contract,  when. 

The  mere  naming  the  day  on  or  before  which  the  contract 
for  the  conveyance  of  real  estate  shall  be  consummated,  does 
not  make  time  of  the  essence  of  the  contract,  and  if  an 
abstract  showing  marketable  title  is  to  be  produced,  it  may 
be  perfected,  and  title  may  even  be  perfected  within  a 
reasonable  time  beyond  the  day  named. ^*  But  where  it  is 
especially  stipulated  in  the  contract  that  time  is  of  the 
essence  of  the  contract,  then  there  must  be  a  compliance 
within   the   time,   and  in   the   manner  specified,   in   order  to 


isMertz   v.   Hubbard,   75   Kan.    1,  by    Oglesby    v.    Williams,    112    Ga. 

i88  Pac.  529.     Jt  is  settled  law  that  359,  37  S.  E.  372;  Clampet  v.  Bells, 

a   memorandum,    in    order    to    meet  39  Minn.  272,  39  N.  W.  495;   Metz 

the  requirements  of   the   statute  of  v.    Xeuwitter,    122    N.    Y.    491,    25 

frauds,  shall  give  the  names  of  the  X.    E.    1,044,    11    L.    R.    A.    97,    19 

contracting    parties,    or     some     de-  Am.   St.  Rep.   514;    Breckenridge  v. 

scription    by    which    they     can    be  Crocker,   78   Cal.  529,  21   Pac.  179; 

identified.     Several  courts  have  held  Schenck    v.    Spenz,    47    N.    J.    Eq. 

this    rule    is    not    satisfied    by    the  44,     19     Atl.     881;      O'Sullivan     v. 

memorandum's     naming     nn     agent  Overton,  56  Conn.  102,  14  Atl.  300; 

who    acts    for    one    of    the    parties  King   v.   King,    36    Ala.   267;    Sher- 

throughout     the     transaction,     but  burne  v.  Shaw,  1  jST.  H.  157,  8  Am. 

who   is  not  personally  bound.     The  Dec.    47;     Wheeler    v.    Waldin,    17 

leading  case  to  this  effect  is  Grafter  iXeb.   122,   22  N.  W.  346. 

V.     Cummings,    99    U.    S.     100,    25  i*  Wiley      v.      Helen,      112      Pac. 

L.  Ed.  366,  which  has  been  followed  (Kan.)    loS. 


349  CONVEYANCE   OP   REAL   ESTATE.  §  §  443,  444 

enforce  a  specific  performance  of  the  same/^  Time  fixed 
for  the  performance  may  be  waived.^"  And  in  such  a  case 
where  none  of  the  parties  concerned  suffer  any  specific  injury, 
the  abstract  may  be  completed  at  any  time  before  the  decree.^'' 

Sec.  443.  Performance  will  not  be  decreed  where  title  is 
defective. 

Where  a  purchaser  contracts  for  a  title  by  warranty  deed 
free  from  incumbrances,  he  cannot  be  compelled  to  take  a 
title  other  than  contracted  for.  This  rule  applies  where  the 
incumbrance  is  a  mortgage  which  the  party  is  unable  to 
discharge.^^ 

A  perfect  title  is  one  free  from  litigation,  palpable  defects 
and  grave  doubts,  and  consists  of  both  legal  and  equitable 
title,  fairly  deducible  of  record.^^ 

Sec.  444.  Title  unless  refused  by  purchaser  precludes  an 
action  by  him  for  specific  performance. 

Where  a  contract  is  made  for  the  conveyance  of  a  tract 
of  land,  and  it  develops  that  the  title  is  defective,  an 
unconditional  and  final  refusal  by  the  purchaser,  with  full 
knowledge  of  the  facts,  to  accept  the  only  title  the  seller  is 
able  to  convey,  will  prevent  him  from  afterwards  maintaining 
an  action  for  specific  performance  of  the  contract."*' 

15  Powers  V.  Rude,  14  Okla.  381,  is  Saxon  v.  White,  95  Pac. 
79  Pac.  94;  Johnson  v.  Burdette,  (Okla.)  783;  Kennedy  v.  Hazelton, 
7  Kan.  App.  134,  53  Pac.  87;  128  U.  S.  667,  9  Sup.  Ct.  202,  32 
M.,  K.  &  C.  B.WJ.  V.  Thompson,  L.  Ed.  576;  Farrar  v.  Dean,  24  Mo. 
24  Kan.  170;  Cincinnati  v.  Busby,  16;  Corby  v.  Drew,  55  N.  J.  Eq. 
51  Fed.  738,  19  L.  R.  A.  796;  387,  36  Atl.  827;  Snell  v.  Mitchell, 
Phillips  V.   Seymour,  91   U.   S.   650,  65  Mo.  48. 

23    L.    Ed.    341;    Jones    v.    United  is  Campbell    v.    Hawk,    122    Pac. 

States,  96  U.  S.  24,  24  L.  Ed.  644.        (Okla.)    127. 

16  Fletcher  v.  Painter,  105  Pac.  -o  Riley  v.  Allen,  81  Pac.  18G, 
(Kan.)    500.                                                   71    Kan.    625. 

17  Bell  V.  Sternberg,  53  Kan.  571, 
36  Pac.  986;  McNutt  v.  Mellins, 
82  Kan.  424,   108  Pac.  434. 


§§445-447        merwine's  trial  of  title  to  land. 


350 


Sec.  445.    The  evidence  required  in  proof  of  the  contract. 

The  Supreme  Court  of  Kansas  established  the  rule  that 
the  agreement  should  be  clearly  and  definitely  established,==^ 
quoting  with  approval  on  this  subject,  the  following: 

"But  equally  would  it  be  the  duty  of  a  court  of  equity  to 
refuse  that  relief  where  the  agreement  sought  to  be  given 
effect  is  not  certain  and  definite.  Clearly  it  should  hesitate 
to  assume  the  grave  responsibility  of  implying  an  agreement, 
whose  existence  depends  upon  circumstances  inconclusive  in 
their  nature,  and  permitting  an  inference  either  way.  It  is 
not  essential  to  the  intervention  of  equity,  in  order  to  pre- 
vent the  accomplishment  of  fraud,  that  an  agreement  should 
be  established  by  direct  evidence.  It  may  be  established  by 
such  facts  and  circumstances  as  will  raise  the  implication  that 
it  was  made;  and  may  have  reinforcement  from  the  evidence 
of  the  conduct  of  the  parties  at  the  time  and  subsequently."  " 

Sec.  446.    Evidence — Tender  of  abstracts — Affidavits  as  part 
of  abstract  may  be  evidence,  when. 

While  it  is  true  that  affidavits  employed  to  supply  facts 
showing  title  to  real  estate  are  not  competent  evidence,  yet, 
in  an  action  to  compel  specific  performance  of  a  contract  to 
purchase  land,  where  it  devolves  upon  the  plaintiff  to  show 
that  she  tendered  an  abstract  of  title,  the  abstract  itself,  and 
ex  parte  affidavits  accompanying  the  same,  for  the  purpose 
of  proving  who  are  the  heirs  of  a  deceased  person,  are  com- 
petent evidence  showing  the  kind  of  abstract  furnished.'^ 

Sec.  447.    The  statute  of  frauds. 

The  following  contracts  are  invalid,  unless  the  same,  or 
some  note  or  memorandum  thereof,  be  in  writing  and  sub- 
scribed by  the  party  to  be  charged,  or  by  his  agent : 

21  Anderson  v.  Anderson,  75  Kan.  23  Harrel  v.  Neef,  102  Pac. 
117,   88  Pac.   743.                                          (Kan.)    838. 

22  Edson    V.    Parsons,    155    N.    Y. 
555,  50  N.  E.  265. 


351  CONVEYANCE    OP    REAL   ESTATE.  §  447 

1.  An  agreement  that,  by  its  terms,  is  not  to  be  performed 
within  a  year  from  the  making  thereof. 

2.  A  special  promise  to  answer  for  the  debt,  default  or 
miscarriage  of  another,  except  in  the  cases  provided  for 
under  the  statute   relating  to   guarantees,   found   in   the   note 

below.^* 

3.  An  agreement  made  upon  consideration  of  marriage, 
other  than  a  mutual  promise  to  marry. 

4.  An  agreement  for  the  sale  of  goods,  chattels  or  things 
in  action,  at  a  price  not  less  than  fifty  dollars,  unless  the 
buyer  accept  or  receive  part  of  such  goods  and  chattels,  or 
the  evidences  of  some  of  them,  of  such  things  in  action,  or 
pay  at  the  same  time  some  part  of  the  purchase  money;  but 
when  a  sale  is  made  by  auction,  an  entry  by  the  auctioneer 
in  his  sale  book,  at  the  time  of  the  sale,  of  the  kind  of 
property  sold,  the  terms  of  sale,  the  price  and  the  names  of 
the  purchaser  and  person  on  whose  account  the  sale  was 
made,  is  a  sufficient  memorandum. 

5.  An  agreement  for  the  leasing  for  a  longer  period  than 
one  year,  or  for  the  sale  of  real  property,  or  of  an  interest 
therein;  and  such  agreement,  if  made  by  an  agent  of  the 
party   sought  to  be   charged,   is  invalid,  unless   the   authority 

24  A   promise    to    answer    for    the  party  making  the  promise  the  prin- 

obligation  of  another  in  any  of  the  eipal    debtor,    and     the    person    in 

following  cases,   is   deemed  an  orig-  whose  behalf  it  is  made  his  surety, 

inal  obligation  of  the  promisor,  and  (3)     Where  the   promise,   being  for 

need  not  be  in  writing:      (1)  Where  an  antecedent  obligation  of  another, 

the  promise  is  made  by  one  who  has  is  made  upon  the  consideration  that 

received    property   of   another   upon  the   party    receiving   it    cancels   the 

an    undertaking    to    apply    it    pur-  antecedent  obligation,  accepting  the 

suant    to   such    promise,   or   by   one  new  promise  as  a   substitute  there- 

who  has  received   a  discharge  from  for;   or  upon  the  consideration  that 

an  obligation,   in  whole  or  in  part,  the   party   receiving  it   releases   the 

in    consideration    of    such    promise.  property    of    another    from    a    levy, 

(2)     Where  the  creditor  parts  with  or    his    person    from    imprisonment 

value,  or   enters   into   an   obligation  under   an  execution   on   a  judgment 

in    consideration    of    the    obligation  obtained   upon   the   antecedent   obli- 

in  respect  to  which   the  promise  is  gation;     or    upon     a    consideration 

made,    in    terms    or    under    circum-  beneficial   to  the  promisor,  whether 

stances,     such     as     to     render    the  moving    from    either    party   to   the 


§§  448,  449         merwine's  trial  of  title  to  land. 


352 


of  the  agent  be  in  writing,  subscribed  by  the  party  sought 
to  be  charged.-^ 

The  fact  that  the  parties  to  a  written  agreement  had  made 
a  prior  verbal  agreement  for  the  purchase  and  sale  of  real 
estate,  will  not  invalidate  the  written  agreement.-** 

Sec.  448.  The  statute  of  frauds— The  writing  excludes  all 
other  negotiations. 
The  execution  of  a  contract  in  writing,  v.-hether  the  law 
requires  it  to  be  written  or  not,  supersedes  all  oral  negotia- 
tions or  stipulations  concerning  its  matter,  which  preceded 
or  accompanied  the  execution  of  the  instrument." 

Sec.  449.     Statute  of  frauds— Contracts  made  by  agent  of 
owner  of  real  estate. 

The  employment,  by  the  owner  of  real  estate,  of  an  agent 
to  find  a  purchaser  for  it,  need  not  be  in  writing.-^  But  the 
mere  employment  of  an  agent  to  sell  real  estate,  or  the 
mere  listing  of  the  real  estate  that  may  be  made  for  the 
sale  of  it,  will  not  give  the  agent  authority  to  enter  into  a 
contract  for  the  sale  thereof  to  the  purchaser.-''  The  owner, 
by  executing  a  deed  and  accepting  the  benefits  of  such  con- 
tract so  made  by  an  agent,  may  estop  himself  from  denying 
any  liability  under  the  contract  so  made  by  the  agent.^"     The 

antecedent   obligation,    or   from   an-  =5  Snyder,     1,089;     Wilson,     7S0; 

other  person.      (4)    Where  a  factor  Xorth  Dakota,  5,332   (1905);   South 

undertakes,  for  a  commission,  to  sell  Dakota,   1,230    (1903),   identical, 

merchandise     and     guarantees     the  =6  Larison   v.    Wilbur,    47    N.    W. 

sale.      (5)    Where  the  holder  of  an  (North  Dakota),  38. 

instrument     for     the     payment     of  27  Snyder,     1,090;     Wilson,     781; 

money,  upon  which  a   third   person  North  Dakota,  5.333    (1905);   South 

is,   or    may    become    liable    to    him,  Dakota,   1,239    (1903),  identical, 

transfers  it  in  payment  of  a  precod-  28  McLaughlin     v.      Wheeler,      47 

ent  debt  of  his,   or  for  a  new   con-  N.  W.    (South  Dakota),  816. 

sideration,    and    in   connection   with  29  Ballon  v.  Bergvendson,  83  N.  W. 

such  transfer,  enters  into  a  promise,  (Xorth  Dakota),   10. 

respecting  such  instrument.    Snyder,  ^"  Townsend      v.      Kennedy,      160 

3,577;    Wilson,    4,277.  N.  W.    (Soath  Dakota),  164. 


353 


CONVEYANCE   OF   RK.VL   ESTxVTE. 


§450 


agent's  authority  to  execute  a  binding  contract  for  the  sale 
of  land  of  his  principal  may  be  established  by  letters  and 
telegrams.^^ 

Sec.  450.    Statute  of  frauds— Part  performance  satisfies  the 
statute — Possession. 

Taking  possession  of  real  estate  under  a  parol  agreement 
for  the  purchase  thereof,  and  making  valuable  and  lasting 
improvements  thereon,  takes  the  case  out  of  the  statute  of 
frauds. ^- 

A  parol  agreement  to  convey  land  in  full  payment  of  the 
purchase  price,  will  not  alone  operate  to  pass  the  title  thereto, 
where  no  possession  of  the  land  is  taken  under  the  agree- 
ment,   and   no   memoranda   is   in   writing.^^      The   possession 


31  Farrel   v.    Edwards,    66   X.   W. 
(South  Dakota),   812. 

32  Sutherland  v.  Taintor,  17  Okla. 
427,  87  Pac.  900;  Newkirk  v.  Mar- 
shall, 35  Kan.  77,  10  Pac.  571; 
Abrams  v.  Abrams,  74  Kan.  888, 
88  Pac.  70;  Gilmore  v.  Asbury,  64 
Kan.  383,  67  Pac.  864;  Hohndon 
V.  Janes,  42  Kan.  758,  21  Pac.  591. 
The  provisions  of  a  parol  contract 
respecting  an  interest  in  real  estate 
is  taken  out  of  the  operation  of  the 
statute  of  frauds  by  full  perform- 
ance, and  in  such  case  injunction 
is  an  appropriate  remedy  to  prevent 
the  destruction  of  the  easement  so 
created.  Moore  v.  Chicago,  7  Kan. 
App.  242,  53  Pac.  775.  In  an  action 
to  recover  the  possession  of  land, 
where  the  defendant's  answer  is  a 
general  denial,  it  is  not  error  to 
prove  by  parol  evidence  that  prior 
to  the  beginning  of  the  suit,  to 
settle  the  controversy  between  them 
respecting  the  land,  they  agreed 
upon  a  division  thereof;  that  they 
made  conveyances  to  each  other  by 
which  they  intended  to  convey  the 


respective  tracts  according  to  the 
settlement;  that  they  moved  the 
division  fence  accordingly,  and  each 
went  into  possession  of  the  tract 
intended  to  be  conveyed,  notwith- 
standing the  deeds  do  not  convey 
the  land  by  reason  of  an  insufficient 
description.  Anderson  v.  Cantor, 
10  Kan.  App.  167,  63  Pac.  285. 

33  Godard  v.  Donaha,  42  Kan.  754, 
22  Pac.  708.  Where  a  contract  for 
the  purchase  and  sale  of  real  estate 
is  made,  and  the  vendor  executes  a 
title  bond  for  the  conveyance  of  the 
property  to  the  vendee,  and  the 
vendee,  with  the  consent  of  the 
vendor,  accepts  the  title  bond,  takes 
possession  of  the  real  estate,  exer- 
cises acts  of  ownership  over  the 
real  estate,  and  pays  a  portion  of 
the  purchase  money,  the  vendor  may 
afterwards,  when  the  remainder  of 
the  purchase  money  becomes  due, 
maintain  an  action  therefor  against 
the  vendee,  notwithstanding  the 
statute  of  frauds.  The  acts  of  the 
vendor,  in  connection  with  those  of 
the  vendee,  are  sufficient  in  such  a 


§451 


MER wine's   trial   OF   TITLE   TO   LAND. 


354 


must  also  be  actual,  notorious  and  exclusive.^*  Again,  a  part 
payment  and  possession  which  will  take  the  case  out  of  the 
statute  of  frauds,  must  be  a  possession  authorized  by  the 
owners  of  the  property,  and  must  have  been  taken  in  good 
faith.^^  The  mere  payment  of  part  of  the  purchase  price  will 
not  be  sufficient  to  take  the  case  out  of  the  regulations  of  the 
statute.^^ 


Sec.  451.  Statute  of  frauds — Verbal  contract  partly  per- 
formed may  be  specifically  enforced. 
The  theory  upon  which  the  courts  will  enforce  a  verbal 
contract  for  the  purchase  and  sale  of  real  estate  is  that  it 
would  be  an  act  of  fraud  for  the  owner  to  place  the  other 
in  possession,  and  accept  money  on  the  contract,  and  then 
refuse  to  abide  by  the  agreement.^^ 


case,  to  take  the  eoutract  out  of 
the  statute  of  frauds,  and  to  make 
it  binding  on  both  parties.  Green- 
less  V.  Roche,  48  Kan.  503,  29  Pac. 
590;  Wharton  v.  Stoutenburg,  25 
N.  J.  Eq.  266;  Waken  v.  Owen, 
79  Mo.  563;  Sleniger  v.  Williams, 
63  Ga.  478;  Laurence  v.  Railroad, 
25  Hun,  467;  Steenrod  v.  Railroad, 
27  W.  Va.  1;  Brown's  Stat,  of 
Frauds,  Sec.  471.  The  taking  pos- 
session of  and  cutting  growing  grass 
under  a  verbal  contract  at  a  stated 
expense,  will  not  satisfy  the  statute 
for  the  purchase  of  real  estate. 
Ross  V.  Cook,  80  Pac.  38.  The  pos- 
session which  will  take  the  contract 
out  of  the  statute  of  frauds  must 
be  connected  with  the  contract.  It 
must  not  refer  to  any  other  cause. 
Hartshorn  v.  Smart,  67  Kan.  543, 
73  Pac.   73. 

34  O'Brien  v.  Foulke,  79  Kan.  479, 
77  Pac.  103;  Baldwin  v.  Squier, 
31  Kan.  284,   1   Pac.   501. 

35  Gault  V.  Pyles,  19  Okla.  445. 
92    Pac.    1,761;    Eberville   v.    Lead- 


ville,  28  Colo.  24,  64  Pac.  200; 
McKinnon  v.  Nixon,  128  Ala.  612, 
29  So.  690;  Cockerell  v.  Mclntyre, 
161   Mo.  59,  51   S.  W.  648. 

38Leese  v.  Potter,  68  Kan.  117, 
74  Pac.  622;  Guthrie  v.  Anderson, 
41  Kan.  383,  28  Pac.  164;  Schultz 
V.  Pearson,  63  Kan.  38,  64  Pac. 
963. 

3T  Halsell  V.  Renfrow,  14  Okla. 
674,  78  Pac.  123;  Pomeroy's  Eq. 
Jur.,  1,410.  "The  general  principle 
to  be  extracted  from  the  authorities 
is  that  if  the  plaintiff,  with  the 
knowledge  and  consent  of  the  prom- 
isor, does  acts  pursuant  to  and  in 
obvious  reliance  upon  a  verbal 
agreement,  which  so  change  the  rela- 
tions of  the  parties  as  to  render  a 
restoration  of  their  former  condi- 
tion impracticable,  it  is  a  virtual 
fraud  upon  the  part  of  the  promisor 
to  set  up  the  statute  in  defense,  and 
thus  to  receive  to  himself  the  bene- 
fit of  the  acts  done  by  the  plaintiff, 
while  the  latter  is  left  to  the 
chance    of    a    suit    at    law    for    the 


355  CONVEYANCE   OF   REAL   ESTATE.  §§  452,  453 

Sec.  452.     Statute  of  frauds— Description  defective— Undis- 
closed principal. 

The  signing  of  a  contract  to  convey  real  estate  by  a  party 
to  be  charged  in  a  suit  for  specific  performance  satisfies  the 
statute  of  frauds;  but  want  of  mutuality  in  the  contract 
because  the  party  suing  did  not  sign,  is  not  a  defense  to  the 
action.^^ 

Sec.  453.    Statute  of  frauds — The  parties  to  a  written  con- 
tract— ^Within    the    statute    contract    may    not 
modify  its  terms  orally. 
Where  a  contract  is  within  the  provisions  of  the  statute 
of  frauds,  and  is  reduced  to  writing,  they  will  not  be  per- 
mitted to  engraft  to  its  terms,  by  subsequent  oral  agreement, 
new  stipulations.     By  so  doing,  there  would  be  a  new  eon- 
tract  resting  partly  in  parol  and  partly  in  writing.     Where 
the  parties  do  make  such  a  contract,  and  suit  arises  thereon, 
such    subsequent    agreement    is    not    admissible    in    evidence. 
The  theory  of  this  rule  is,  that,  if  a  contract  can  be  altered 
by  parol,  it  would  practically  render  the  statute  useless.^^ 

reimbursement  of  his  outlays,  or  to  bury,  67  Kan.  762,  74  Pac.  279; 
an  action  upon  a  quantum  meruit  Galbreath  v.  Galbreath,  5  Kan.  403; 
for  the  value  of  his  services.  In  Edwards  v.  Fry,  9  Kan.  417;  New- 
discussing  what  are  and  what  are  kirk  v.  Marshall,  35  Kan.  77,  10 
not  acts  done  in  part  performance  Pae.  571;  Greenless  v.  Roche,  48 
which  will  entitle  the  plaintiff  to  Kan.  503,  29  Pac.  590;  Holcomb  v. 
a  decree  in  his  favor,  the  entry  into  Dowell,  15  Kan.  378;  Bogle  v. 
possession  of  the  land  and  the  Jarvis,  58  Kan.  76,  48  Pac.  538; 
making  of  valuable  improvements  Schwindt  v.  Schwindt,  61  Kan.  377, 
thereon  is  treated  by  all  the  cases  59  Pac.  674;  Gilmore  v.  Asbury, 
as  one  of  the  most  satisfactory  evi-  64  Kan.  388,  67  Pac.  864. 
dences  of  part  performance,  and  38  Wiley  v.  Helen,  112  Pac. 
entitling  the  plaintiff  to  a  decree  (Kan.)  158;  Becker  v.  Mason, 
in  his  favor."  Mr.  Justice  Brown  30  Kan.  697,  2  Pac.  850;  Guthrie 
in  Townsend  v.  Vanderwerker,  160  v.  Anderson,  47  Kan.  383,  28  Pac, 
U.  S.  171;  Union  v.  McAlpine,  129  164;  Schneider  v.  Anderson,  75 
U.  S.  305,  9  Sup.  Ct.  286,  32  L.  Ed.  Kan.  11,  88  Pac.  525,  8  L.  R.  A. 
•673;    Ryan  v.   Dox,   34   N.   Y.   307,  N.S.,  1,043. 

90   Am.    Dec.    696 ;    Lowry   v.    Tew,  39  Bonicamp  v.  Starbuck,  25  Okla. 

3  Barb.  Ch.  407;  Overstreet  v.  Rice,  483,    106    Pac.   839;    Dana   v.    Han- 

96  Am.  Dec.  279;    Burrill  v.  Brad-  cock,  30  Ver.  616;  Reugie  v.  Holtz- 


§§454,  455        merwine's  trial  op  title  to  land.  356 

Sec  454.  Statute  of  frauds — Contract  may  be  made  partly 
by  letters,   writings  and  telegrams. 

A  contract  within  the  meaning  of  the  statute  of  frauds 
may  be  made  by  part  writings,  telegrams  and  correspond- 
ence between  the  parties  concerning  the  transaction.  But 
these  must  be  concerning  the  subject-matter  of  the  contract 
and  must  be  so  connected  with  each  other  that  they  may 
be  stated  to  constitute  one  paper  relating  to  the  contract.*" 

The  court  in  discussing  this  subject  in  Halsell  v.  Renfrow, 
supra,  said: 

''In  order  to  be  sufficient,  the  letters,  telegrams  and  writ- 
ings relied  upon  must,  by  reference  to  each  other,  disclose 
every  material  part  of  a  valid  contract,  and  must  be  signed 
by  the  party  sought  to  be  charged.  They  must  set  out  the 
parties,  the  subject-matter,  the  price,  the  description,  terms 
and  conditions,  and  leave  nothing  to  rest  in  parol.  It  is  a 
general  rule  that  parol  evidence  cannot  be  admitted  to  supply 
an  omission  of  any  essential  element  of  the  contract."*^ 


Sec.  455.  Statute  of  frauds — A  receipt  is  not  sufficient  to 
satisfy  the  statute. 
A  receipt  signed  by  the  vendor  for  part  of  the  considera- 
tion will  not  satisfy  the  statute.  The  receipt  is  not  objec- 
tionable because  one  party  only  signs  it.  The  real  objection 
is  it  does  not  state  all  the  terms  and  conditions  of  the  con- 


claw,  112  Mo.  519,  20  S.  W.  800;  Sup.  Ct.  913,  34  L.  Ed.  447;  Bibb 
Dayton  v.  Stone,  111  Mich.  346,  v.  Allen,  140  U.  S.  481,  13  Sup.  Ct. 
19  N.  W.  29;  Warden  v.  Williams,  950,  37  L.  Ed.  819. 
62  Mich.  50,  28  N.  W.  796,  4  4i  Fox  v.  Easter,  10  Okla.  527, 
Am.  St.  814;  Gates  v.  Gamble,  53  62  Pac.  283;  Gaiilt  v.  Storm- 
Mich.  181,  18  N.  W.  631;  Beach  on  ont,  51  Mich.  636,  17  N.  W. 
Contracts,  579.  214;  Eggleston  v.  Wagoner,  46 
40  Halsell  v.  Renfrow,  14  Okla.  Mich.  610,  10  N.  W.  37;  Ferguson 
67,  78  Pac.  121 ;  Beckwith  v.  Talbot.  v.  Blackwell,  8  Okla.  449,  58  Pac. 
95  U.  S.  289,  24  L.  Ed.  496;  Ryan  647;  Ryan  v.  United  States,  136 
V.  United  States,   136  U.  S.  68,  10 


357  CONVEYANCE   OF   REAL   ESTATE.  §§  456-458 

tract.  When  a  receipt  gives  the  description  of  the  real 
estate,  the  consideration  and  all  the  terms  of  a  valid  con- 
tract, its  identity  is  lost,  and  it  then  becomes  a  contract.*- 

Sec.  456.     Bond  to  build  may  be  specifically  enforced,  when. 

It  has  been  held  that  a  bond  with  penalty  to  erect  a  certain 
building  by  a  named  day,  is,  if  the  time  to  build  is  past, 
equivalent  to  a  bond  with  penalty  to  convey,  and  that  such 
bond  is  in  equity  treated  as  a  contract  to  convey,  which  may 
ordinarily  be  specifically  enforced.*^ 

Sec.  457,    An  agreement  to  dispose  of  property  by  will  spe- 
cifically enforced,  when. 

The  general  doctrine  of  the  courts  on  this  subject  is  that 
when  a  definite  contract  to  leave  property  by  will  has  been 
clearly  and  certainly  established,  and  there  has  been  per- 
formance on  the  part  of  the  promisee,  equity  will  grant 
relief,  provided  the  case  is  free  from  objection  on  account 
of  inadequacy  of  consideration,  and  there  are  no  circum- 
stances or  conditions  which  render  the   claim  unequitable.** 

Sec.  458.     Compensation  allowed  when  specific  performance 
cannot  be  decreed. 

It  is  a  well  settled  principle  that  in  cases  where  the  courts 
are  not  permitted  to  grant  the  equitable  remedy  of  specific 

XJ.  S.  68,  10  Sup.  Ct.  913,  34  L.  Ed.  dence,  the  description,  without  being 

447.      In  the   latter   case   the   court  contradicted    or    added    to,    can    be 

said:     "It  is  not  essential  that  the  connected   with   and   applied  to   the 

description    have    such    particulars  very  property  intended,   and  to  the 

and    token    of    identification    as    to  exclusion   of  all   other   property." 

render   resort    to    extrinsic    aid    en-  *-  Fox    v.    Easter,    10    Okla.    527, 

tircly    needless,    when    the    writing  56  Pac.  283;   Banckman  v.  Kuyder- 

comes  to  be  applied  to  the  subject-  duell,    6     Blackf.    21;     Lathorp    v. 

matter.     The  terms  may  be  abstract  Bryant,  2  Bing.  N.  C.  735. 

and  of  a   general   nature,  but   they  *3  Whetstone  v.   Ottawa,   13  Kan. 

must  be   sufficient   to   fix  and   com-  320. 

prebend   the  property  which   is  the  **  Anderson  v.  Anderson,  75  Kan. 

subject  of  the  transaction,  so  that,  117,    88   Pac.   745;    Eewhl   v.    Hau- 

with  the  assistance  of  external  evi-  masen,  114  Ind.  311,  15  N.  E.  345; 


§  459  merwine's  trial  of  title  to  land.  358 

performance,  compensation  will  be  allowed  to  the  extent  of 
the  purchase  money  actually  paid  on  the  alleged  contract, 
and,  where,  in  such  a  case,  facts  are  shown  entitling  the 
plaintiff  to  have  a  lien  declared  on  the  real  estate  for  reim- 
bursement, the  court  may  retain  the  case  for  the  purpose  of 
affording  such  relief,  and  compensation  may  be  awarded  for 
the  improvements  made  in  good  faith  on  the  premises.*^ 

Sec.  459.    Decree  of  court  in  default  of  deed  to  operate  as  a 
conveyance — Sheriff  may  make  conveyance. 

Wlien  a  judgment  has  been  rendered  for  a  conveyance,  release 
or  acquittance,  in  any  court  of  this  State,  and  the  party  against 
whom  the  judgment  has  been  rendered  does  not  comply  there- 
with by  the  time  appointed,  such  judgment  shall  have  the  same 
operation  and  effect,  and  be  as  available  as  if  the  conveyance, 
release  or  acquittance  had  been  executed  conformably  to  such 
judgment;  or  the  court  may  order  such  conveyance,  release  or 
acquittance  to  be  executed  in  the  first  instance  by  the  sheriff; 
and  such  conveyance,  release  or  acquittance  will  have  the 
same  effect  as  if  executed  by  the  party  against  whom  the 
judgment  was  rendered.  This  paragraijh  shall  apply  to 
decrees  rendered  or  to  be  rendered  in  suits  now  pending.^** 


Geil  V.  Geil,   64  Hun,   600,   66  Am.  done.      The    rule    upon    which    the 

Dec.  773.     The  principle  upon  which  courts   proceed   is   to  construe   such 

courts   of   equity   undertake    to    en-  an  agreement,  unless  void,  under  the 

force    agreements    of    this    kind    is  statute  of  frauds,  or  for  other  rea- 

well   stated   in   Bollman   v.   Overall,  son,    to    bind    the    property   of    the 

80  Ala.  451,  2  So.   2,  60   Am.  Rep.  testator   or   intestate,    so   far   as  to 

107.      It  is  not  claimed,   of  course,  fasten    a    trust    on    it    in    favor   of 

that   any  court  has   power   to   com-  the  promisee,  to  enforce  such  trust 

pel  a  person  to  execute  a  last  will  against  the  heirs  and  personal  rep- 

and    testament,    carrying    out    his  resentatives     of     the     deceased,     or 

agreement  to  bequeath  a  legacy,  for  others  holding  under  them,  charged 

this   can  be   done   only   in   the   life-  with  notice  of  the  trust.     See,  also, 

time  of  the  testator,  and  no  breach  Newton   v.  Lyon,  7  Kan.  App.   811. 

of   the    agreement    can    be    assumed  45  Superior    v.    Mehlin,    25    Okla. 

so  long  as  he  lives.     And  after  his  809,    108   Pac.    545. 

death,    he    is   no    longer   capable   of  46  Snyder,    5,922;    Wilson,    4,589; 

doing  the  thing  agreed  by  him  to  be  Kansas,  4,849    (1901),  identical. 


359 


CONVEYANCE   OF   REAL,  ESTATE.  §§  460-462 


A  decree  requiring  performance  by  one  party  will  also 
require,  if  possible,  performance  by  the  other.*^ 

Sec.   460.    Decree  may   contain   terms   of  mortgage   agreed 
upon  by  contract. 

Where  a  contract  for  the  sale  of  real  estate  provides  that 
the  purchaser  shall  execute  a  mortgage  to  secure  the  pur- 
chase price,  and  is  silent  with  respect  to  the  terms  and  con- 
ditions of  the  mortgage,  it  is  proper  for  the  court  to  provide 
in  the  decree  for  specific  performance,  that  the  mortgage 
shall  contain  the  usual  terms  and  conditions  of  a  real  estate 
mortgage/* 

Sec.  461.    The  procedure  where  the  statute  of  frauds  is  inter- 
posed as  a  defense. 

Where  a  contract  is,  by  the  statute  of  frauds,  required  to 
be  in  writing,  the  petition  need  not  state  affirmatively  that 
it  is  in  writing ;  but  if  not  in  writing,  the  fact  must  be  stated 
in  the  answer,*^  but  where  the  defense  is  based  upon  a 
promise  required  by  the  statute  of  frauds  to  be  in  writing, 
the  answer  must  show  that  such  promise  was  in  writing."'' 
A  contract  valid  where  it  is  made  to  be  performed  will  be 
enforced  in  this  State,  although  within  the  inhibition  of  the 
statute  of  frauds,  of  this  State." 


Sec.  462.    The  venue  of  the  action. 

An  action  to  compel  the  specific  performance  of  real  estate 
may  be  brought  in  the  county  where  the  land  lies,  or  where 
the  defendants,  or  any  of  them,  reside." 

47  Craft  V.  Bent,  8  Kan.  324.  si  Eldridofe    v.    Hetiton,    7    C.    C. 

48  Barrel      v.      Neef,      102      Pac.        (Ohio),  499. 

(Kan.)    838.  52  Snyder,    5.581 ;    Act    of    April, 

49Gladwell    v.    Hnmo,    18    C.    C.  1908;  Kansas,  4.477    (1901) ,  identi- 

(Ohio),   843.  cal;  Nebraska.  1.051    (1907).  identi- 

soReinheimer  v.   Carter,  31   0.  S.  cal;   see  Close  v.  Wlieston,  65  Kan. 

579.  830,   70  Pac.   891. 


§  463  mebwine's  trial  of  title  to  land.  360 

Sec.  463.  The  procedure  by  which  a  contract  for  the  sale  of 
real  estate  is  specifically  enforced — Petition  by 
vendor  to  compel  vendee  to  complete  contract  of 
purchase. 

District  Court,  County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

,  Defendant. 

PETITION. 
Comes  now  the  plaintiff,  and,  for  his  cause  of  action  herein, 
alleges  and  states : 

1.  That  on  the day  of ,  19 — ,  he  was  the  owner 

in  fee  simple  of  the  following  described  premises,  situated  in  the 
county  of  ,  State  of  Oklahoma,  to-wit:  (Here  insert  de- 
scription.) 

2.  That  on  the day  of ,  19—,  plaintiff  entered 

into  a  contract  in  writing  with  defendant,  whereby  it  was  agreed 
that  plaintiff  would  sell  said  real  estate,  and  defendant  agreed 

to  purchase  the  same  for  the  sum  of  $ ,  upon  the  following 

payments,  to-wit :  $ ,  to  be  paid  in  cash,  and  the  remainder 

thereof  to  be  paid  in  years,  said  deferred  payment  to 

bear  interest  at  the  rate  of per  cent.,  and  to  be  secured  by 

mortgage  on  the  real  estate  sold. 

3.  That  it  was  agreed  between  plaintiff  and  defendant  that 
the  sale  was  to  be  completed  and  the  deed  and  mortgage  passed 
between  them  on  the day  of ,  19 — . 

4.  That  upon  the  date  last  aforesaid,  plaintiff  duly  tendered 
said  defendant  a  good  and  sufficient  deed  for  the  above  described 
premises,  and  has  complied  with  all  the  conditions  on  his  part 
to  be  performed  pursuant  to  said  agreement. 

5.  That  the  defendant  upon  said  date  refused,  and  still 
refuses  to  perform  and  carry  out  said  contract,  to  make  said  pur- 
chase, or  to  pay  said  sum  of  $ ,  or  to  execute  said  mort- 
gage. 

Plaintiff  prays,  the  premises  considered,  that  said  defendant 
be  required  to  carry  out  said  contract,  to  pay  said  purchase 
money,  to  execute  said  mortgage,  and  for  such  .relief  as  is  proper. 


361  CONVEYANCE   OF   REAL   ESTATE.  §  464 

Sec.  464.     The  petition  by  vendee  to  compel  vendor  to  make 
deed. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

,  Defendant. 

PETITION. 
Comes  now  the  plaintiff,  and,  for  liis  cause  of  action  herein, 
alleges  and  states : 

1.  That  on  the day  of ,  19—,  the  defendant  was 

the  owner  of  and  seized  in  fee  simple  of  the  following  described 
real  estate,  to- wit:  (Here  give  specific  description  of  same.) 

2.  That  on  said  day,  to-wit :  the day  of ,  19 — , 

plaintiff  entered  into  an  agreement  in  writing  vnth  the  defend- 
ant, wherein  it  was  agreed  that,  in  consideration  of  the  sum  of 

$ ,  to  be  paid  by  this  plaintiff,  in  the  following  manner: 

(Here  insert  terms  of  agreement),  that  said  defendant  should 
sell  and  convey  said  real  estate  to  plaintiff,  by  good  and  sufficient 
deed  of  warranty. 

3.  That  on  the day  of ,  19 — ,  according  to  the 

terras  of  said  contract,  the  plaintiff  duly  tendered  to  the  defend- 
ant said  sum  of  $ ,  and  requested  him  to  convey  said  prem- 
ises to  plaintiff,  as  provided  by  said  agreement,  but  the  defend- 
ant then  refused,  and  still  refuses  to  execute  and  deliver  said 
conveyance. 

4.  That  the  plaintiff  has  duly  performed  all  the  conditions 
of  said  agreement  on  his  part  to  be  performed,  and  is  now  ready 
and  willing  to  pay  said  purchase  money,  and  now  brings  said 

sum  of  $ into  court,  and  offers  the  same  to  said  defendant, 

upon  his  executing  and  delivering  to  plaintiff  a  sufficient  con- 
veyance of  said  premises,  according  to  the  terms  of  said  contract. 

Plaintiff  prays,  premises  considered,  that  the  court  order  and 
decree  that  the  defendant  convey  said  premises  to  plaintiff  by 
good  and  sufficient  deed,  and  for  such  relief  as  may  seem  equi- 
table. 


Attorneys  for  Plaintiff. 


§  465  merwine's  trial  of  title  to  land.  362 

Sec.  465.    Petition  to  enforce  performance  of  verbal  contract 
of  sale. 
District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

,  Defendant. 

PETITION. 

Comes  now  the  plaintiff,  and,  for  his  cause  of  action  herein, 
alleges  and  states  : 

1.  That  on  the day  of ,  19 — ,  the  defendant  was 

the  owner  in  fee  simple  of  the  following  described  premises, 
to-wit:  (Here  specifically  describe  same),  and  on  that  day,  said 
plaintiff  and  said  defendant  entered  into  a  contract,  not  in 
writing,  by  which  said  defendant  agreed  to  sell  said  premises 
to  plaintiff  for  the  sum  of  $ . 

2.  That  the  terms  of  said  contract  were  as  follows:  (Here 
state  terms  of  agreement  in  detail)  ;  that  the  plaintiff  paid  to 
defendant,   on  the   day   of  making  said   contract,   the   sum  of 

$ ,  as  a  part  of  the  purchase  price  thereof,  and  agreed  to 

pay  the  balance  thereof  in  the  following  manner:  (Here  state 
terms  thereof.) 

3.  That  the  plaintiff  immediately  went  into  possession  of  said 
premises,  and  is  still  in  possession  of  the  same,  and  has,  while 
he  has  been  in  possession,  made  permanent  and  valuable  im- 
provements thereon,  to-Avit:  (Here  state  improvements  made.) 

4.  That  on  the day  of ,  19 — ,  plaintiff  tendered 

to  defendant  the  sum  of  $ ,  the  balance  of  the  purchase 

money  remaining  due  from  him  on  said  sale,  and  demanded  of 
defendant  that  he  make  and  execute  a  deed  for  said  premises 
in  accordance  with  their  said  agreement,  but  that  defendant  then 
refused  so  to  do,  and  still  refuses  to  execute  and  deliver  a  deed 
to  plaintiff  for  said  premises. 

5.  That  the  plaintiff  has  duly  performed  all  the  conditions 
of  said  agreement  by  him  to  be  performed,  and  is  still  willing 


363  CONVEYANCE   OF   REAL   ESTATE.  §  466 

SO  to  do,  and  now  brings  the  balance  of  the  unpaid  purchase 
money  into  court  and  tenders  the  same  to  defendant,  on  con- 
dition that  the  defendant  will  carry  out  his  contract  and  will 
make,  execute  and  deliver  a  deed  for  said  premises  to  plaintiff. 
Wherefore,  plaintiff  prays,  premises  considered,  that  the  court 
decree  that  the  defendant  be  compelled  to  specifically  perform 
his  said  contract,  and  convey  said  premises  to  plaintiff,  accord- 
ing to  their  said  agreement,  and  that  he  may  have  such  other  and 
further  relief  as  equity  and  the  nature  of  the  case  may  require.* 


Attorneys  for  Plaintiff. 


Sec.    466.     Another    form    for    petition    by    vendor    against 
vendee  for  specific  performance. 

District  Court  op  County,  State  op  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

,  Defendant. 


PETITION. 

Comes  now  the  plaintiff,  and,  for  his  cause  of  action  herein, 
alleges  and  states : 

1.  That  on  the day  of ,  19 — ,  he  was,  and  still 

is,  the  owner  in  fee  simple  of  the  following  described  real  estate, 

situated  in  the  county  of  ,   State  of  Oklahoma,  to-wit: 

(Here  specifically  describe  the  same.) 

2.  That  on  said  day  of  ,  19 — ,  plaintiff  and 

defendant  made  and  entered  into  an  agreement  in  writing, 
whereby  plaintiff  agreed  to  sell  to  defendant  said  real  estate, 
and  defendant  thereby  agreed  to  purchase  the  same  for  the  sum 

of  $ ,  upon  the  following  terms:    The  defendant  to  pay 

the  sum  of  $ upon  the  execution  of  said  agreement,  and 

the  balance,  amounting  to  the  sum  of  $ ,  in  cash,  when  the 

deed  should  be  delivered. 

3.  That  by  said  written  agreement,  plaintiff  further  agreed 

that,  on  receiving  payment  of  said  sum  of  $ ,  at  said  time, 

he  would,  at  his  own  proper  cost  and  expense,  execute  and  deliver 

*  The    three    foregoing   forms  adopted  from  Whittaker's  Code  Forms. 


§  467  MER WINE 'S   TRIAL    OF   TITLE    TO   LAND.  364 

to  defendant  a  proper  deed  for  said  premises,  and  thereby  con- 
vey to  him  good  title  in  fee  simple,  free  from  all  incumbrances, 
which  deed,  it  was  agreed  by  said  parties,  should  be  delivered 
on  the day  of ,  19 — . 

4.  That  the  defendant,  upon  the  execution  of  said  agreement, 
paid  to  plaintiff  said  sum  of  $ ,  as  provided  therein. 

5.  That  plaintiff  has  always  been,  and  still  is  ready   and 
willing  to  perform  said  agreement  on  his  part,  and  that  on  the 

day  of  ,  19 — ,  the  said  date  named,  the  plaintiff 

tendered  to  defendant  a  deed  of  the  said  premises,  in  accordance 
with  the  terms  of  said  agreement,  and  then  and  there  demanded 
payment  of  the  balance  of  the  purchase  money  and  interest,  but 
defendant  then  refused,  and  ever  since  has  refused  to  receive 
said  deed  and  pay  the  balance  of  the  purchase  money,  according 
to  said  agreement. 

Wherefore,  plaintiff  prays  judgment  that  the  defendant  per- 
form said  agreement  and  pay  to  plaintiff  the  sum  of  $ , 

and  all  interest  from  the day  of  ,  19 — ,  and  that 

plaintiff  may  have  such  other  and  further  relief  as  equity  and 
the  nature  of  the  case  may  require. 


Attorneys  for  Plaintiff. 

Sec.  467.     Another  form  of  petition  by  vendee  against  vendor 
to  compel  performance  of  oral  contract  of  sale. 

District  Court  of  County,  State  op  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

,  Defendant. 

PETITION. 

Comes  now  the  plaintiff,  and,  for  his  cause  of  action  herein, 
alleges  and  states : 

1,     That  the  defendant  is,  and  was,  on  the  day  of 

,  19 — ,  the  owner  in  fee  of  the  following  described  real 

estate,  situated  in  the   county  of  ,   State  of  Oklahoma, 

to-wit:  (Here  specifically  describe  the  same^.) 


565 


CONVEYANCE    OF    REAL   ESTATE.  §  467 


2.  That   on  said  day  the   defendant  sold  said  premises  to 

plaintiff  for  the  sum  of  $ ,  payable  as  follows:  (Here  state 

amounts  and  time  of  payment),  and  thereby  agreed  to  convey 
said  premises  to  plaintiff  by  deed  of  general  warranty,  upon 
payment  of  said  several  sums  of  money. 

3.  That  the  defendant  thereupon  delivered  possession  of  said 
premises  to  plaintiff,  and  ever  since  he  has  continued  in,  and 
still  is  in  possession  of  the  same,  with  the  consent  of  the  de- 
fendant. 

4.  The  plaintiff  has  paid  to  the  defendant  the  following  sums 
of  money  on  said  contract  of  sale :  (Here  state  amounts  of  pay- 
ment). 

5.  That  there  was  on  the day  of ,  19—,  and  still 

is  due  said  defendant,  the  sum  of  $ ,  under  said  contract, 

which  sum  the  plaintiff  tendered  to  the  defendant  on  said  day, 
according  to  the  terms  of  said  contract,  but  defendant  then 
refused,  and  still  refuses,  to  execute  and  deliver  a  proper  deed 
therefor  to  the  plaintiff. 

6.  That  plaintiff,  during  the  occupancy  of  said  premises, 
under  said  contract,  has  made  lasting  and  valuable  improve- 
ments thereon  as  follows:  (Here  state  the  improvements),  of  the 
value  of  $ . 

7.  That  plaintiff  has  duly  performed  all  the  conditions  of 
said  contract  on  his  part  to  be  performed,  and  now  brings  said 
sum  of  money  into  court,  and  offers  the  same  to  defendant  upon 
his  making  and  delivering  to  plaintiff  a  conveyance  of  said  real 
estate  according  to  the  terms  of  his  said  agreement. 

Wherefore,  plaintiff  prays  that  the  defendant  be  required  to 
perform  his  said  agreement,  by  executing  and  delivering  to 
him  a  good  and  sufficient  deed  for  said  real  estate,  and  that  he 
may  have  such  other  and  further  relief  as  equity  and  the  nature 

of  the  case  may  require.  , 

Attorneys  for  Plaintiff. 


§  468  meewike's  trial  of  title  to  land.  366 

Sec.  468.     Form  for  petition  to  compel  specific  performance 
of  agreement  for  exchange  of  property.* 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

,  Defendant. 

PETITION. 

Comes  now  the  plaintiff,  and,  for  his  cause  of  action  herein, 
alleges  and  states : 

1.  That  on  the  day  of  ,  19—,  at  ,  the 

plaintiff  and  defendant  entered  into  an  agreement  in  writing  of 
that  date,  whereby,  in  consideration  of  the  covenants  on  the  part 
of   plaintiff   hereinafter  mentioned,   the    defendant    covenanted 

that  he  would,  on  the  day  of  ,  19 — ,  convey  to 

plaintiff  in  fee,  by  warranty  deed,  the  following  described  real 
estate,  to-wit :  (Here  specifically  describe  same),  in  consideration 
whereof,  the  plaintiff  covenanted  in  and  by  said  agreement,  to 
convey  to  defendant  in  fee  simple  the  following  described  real 
estate,  to-wit:  (Here  specifically  describe  same),  and  it  was 
further  provided  in  said  agreement  that  each  party  might  enter 
into  possession  of  the  premises  so  to  be  conveyed  to  him,  and 
receive  the  profits  thereof  to  his  own  use. 

2.  That  thereafter,  in  pursuance  of  said  agreement,  plaintiff 
and  defendant  took  possession  of  the  real  estate  respectively  to 
be  conveyed  to  them,  and  still  severally  occupy  the  same. 

3.  That  the  plaintiff  duly  performed  all  the  conditions  of 

said  agreement,  on  his  part,  and  on  the  day  of -^ 

19 — ^  tendered  to  the  defendant  a  warranty  deed  to  said  prem- 
ises, duly  signed  by  the  plaintiff,  and  demanded  of  him  a  deed 
to  said  premises,  but  that  defendant  refused  to  execute  and  de- 
liver said  deed  to  said  plaintiff,  and  still  refuses  so  to  do. 

Wherefore,  premises  considered,  the  plaintiff  prays  judg- 
ment that  the  defendant  be  decreed  to  specifically  perform  said 
agreement;  that  he  receive  plaintiff's  said  deed,  and  convey  to 
plaintiff  said  tract  of  land,  and  that  he  may  have  such  other  and 
further  relief  as  equity  and  the  case  may  require. 


The  three  foregoing  forms  adopted  from  Whittaker's  Code  Forms. 


367  CONVEYANCE    OF    REAL   ESTATE.  §  469 

Sec.  469.    The  decree  awarding  specific  performance  of  a  con- 
tract for  the  purchase  and  sale  of  real  estate. 

District  Court  of  County,  State  of  Oklahoma. 

— ,  Plaintiff, 

vs.  No. . 

,  Defendant. 


DECREE  AWARDING  SPECIFIC  PERFORMANCE. 

Now,  on  this day  of ,  19—,  this  cause  came  on 

to  be  heard  upon  the  petition  of  the  plaintiff,  the  answer  thereto 
of  the  defendant,  and  the  reply  thereto,  and  was  heard  upon  the 
evidence  and  the  argument  of  counsel,  and  upon  due  considera- 
tion whereof,  the  court  finds  that  the  plaintiff  and  defendant 
entered  into  a  contract,  as  alleged  in  the  petition,  and  that  plain- 
tiff is  entitled  to  specific  performance  of  said  contract. 

It  is  Therefore  ordered,  adjudged  and  decreed  that  upon  the 

plaintiff's  paying  to  defendant  the  sura  of  $ ,  as  agreed 

upon  in  said  contract,  then  the  defendant  shall,  within  

days  from  the  date  of  this  decree,  deliver  to  plaintiff  a  warranty 
deed,  executed  and  acknowledged  in  due  form  by  him,  with  the 
usual  covenants  of  warranty,  for  the  following  described  real 
estate,  to-wit:  (Here  specifically  describe  same),  and  that  if 
defendant  default  in  making  and  delivering  said  deed,  as  or- 
dered, within days  from  the  date  of  this  order,  then  the 

sheriff  of  this  county  is  ordered  and  directed  to  make,  acknowl- 
edge and  deliver  a  deed  for  said  real  estate  as  by  the  statute 
authorized  and  directed,  and  in  default  of  said  sheriff's  making 
said  deed,  then  this  decree  of  the  court  will  operate  as  a  con- 
veyance of  the  fee  simple  estate  in  said  real  estate  from  defend- 
ant to  plaintiff,  as  fully  and  completely  as  if  said  deed  had  been 
made  as  ordered  herein. 

It  is  considered  that  plaintiff  recover  from  defendant  his  costs 
herein  taxed  at  $ . 


Judge  of  said  Court. 


§  470  mebwine's  trial  op  title  to  land.  368 

Sec.  470.    Form  where  sheriff  executes  deed. 

Know  All  Men  by  These  Presents,  that,  whereas,  on  the 

day  of  ,  19 — ,  plaintiff,  ,  filed  his  petition 

against  in  the  district  court  of County,  State  of 

Oklahoma  in  case  number ,  praying,  among  other  things, 

for  the  specific  performance  of  a  certain  contract  for  the  con- 
veyance of  the  real  estate  hereinafter  set  forth;  and. 

Whereas,  such  proceedings  were  had  in  said  cause,  on  the 

day  of  ,  19 — ,  that  said  court  ordered ,  as 

sheriff  of  County,   Oklahoma,  to  execute,   acknowledge 

and  deliver  to  the  defendant  a  deed,  according  to  the  statute 
in  such  cases  made  and  provided,  conveying  the  fee  simple  title 
to  the  real  estate  hereinafter  described. 

Now,  Know  Ye,  that  I,  the  said ,  sheriff  of  said  county 

of  ,  by  virtue  of  said  judgment,  and  of  the  statute  for 

such  cases  made  and  provided,  and  for  and  in  consideration  of 

the  sum  of  $ ,  and  of  the  premises  herein,  do  hereby  grant, 

sell  and  convey  unto  said  the  following  described  real 

estate,  to-wit:  (Here  specifically  describe  same),  together  with 
the  privileges  and  appurtenances  thereunto  belonging. 

To  Ha^^  and  to  Hold  said  real  estate  unto  said  ,  his 

heirs  and  assigns,  as  fully  and  completely  as  said ,  sheriff 

of  said  county  of ,  by  virtue  of  said  judgment,  decree  and 

the  statute  made  and  provided  for  such  case,  might  or  should 
sell  and  convey  the  same. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  this  the 
day  of ,  19 — . 


Sheriff  of County,  State  of  Oklahoma. 

State  of  Oklahoma, County,  ss. : 

Before  me,  ,  a  notary  public  in  and  for  said  county 

and  State,  on  this  day  of  ,  19 — ,  personally  ap- 
peared   ,  to  me  known  to  be   the  identical  person   who 

executed  the  withm  and  foregoing  instrument,  and  acknowledged 
to  me  that  he  executed  the  same  in  his  capacity  therein  stated. 


369  CONVEYANCE   OF   REAL   ESTATE.  §  470 

and  as  his  free  and  voluntary  act  and  deed,  for  the  uses  and 
purposes  therein  set  forth. 


]My  commission  expires .  Notary  Public. 


§§471,472  mebwine's  trial  of  title  to  land.  370 

3.     CONVEYANCES— THE    LAW    AND    PROCEDURE    BY 
WHICH   INSTRUMENTS    OF    CONVEYANCE 
ARE  CANCELED. 

SECTION  SECTION 

471.  Procedure — General    statement.       478.  The  rvile  as  to  notice. 

472.  Specific    acts   of    fraud    should       -^TSa.  Allegations  of  olTer  to  restore 

be  alleged  and  proved.  consideration. 

473.  The  jury  in  the  action  to  can-       478b.  Federal    court    has    power    to 

eel  instruments  of  conveyance.  cancel  conveyance  of  Indian 

474.  The    petition    need    not    allege  lands. 

inadequacy   of    legal    remedy.       479.  Form  for  petition  for  cancella- 

475.  The    statutory    regulations    as  tion  of  deed. 

to  when  party  may  rescind  a  480.  Another   form   for   cancellation 
contract.  of  deed,  mortgage  and  lease. 
.  476.  Eescission  ana  cancellation  al-  481.  Decree   of    court   canceling    in- 
lowed   for  mistake,  wlien.  struments    set  forth    in   tlie 
477.  Canceling  and  rescinding — ^How  petition. 

and  when  allowed.  482.  Another    form    for    decree    for 

477a.  Mental   incapacity  to  execute  cancellation  of  deeds, 
deed. 


Sec.  471.    Procedure — General  statement. 

The  rules  applicable  to  the  procedure  for  the  reformation 
of  instruments  of  conveyance,  apply  to  the  action  to  cancel 
the  same.  In  actions  to  reform  instruments,  the  mistake  must 
be  mutual,  but  in  an  action  to  cancel  such  instruments,  the 
mistake  of  one  party  will  permit  its  cancellation.^ 

Sec.  472.    Specific  acts  of  fraud  should  be  alleged  and  proved. 

In  an  action  to  cancel  an  instrument  conveying  real  estate, 
the  same  rules  apply  as  are  used  in  other  actions,  and 
conclusions  of  law,  or  facts,  should  not  be  alleged.  When 
fraud  is  the  basis  for  the  action  to  cancel  such  instrument, 
it  is  insufficient  to  make  a  mere  allegation  that  the  instru- 
ment  sought   to   be   canceled   was   procured   by   fraud.      The 


1  2  Kinkead's  Code  Pleading,  Sec.  1,100;  Benson  v.  Marhoe,  37  Minn.  30, 
5  Am.  St.  Rep.  816. 


371  CONVEYANCE   OF   REAL   ESTATE.  §§473,474 

specific  acts  relied  on  as  ^constituting  the   fraud   should  be 
alleged  with  particularity.- 

In  an  action  to  cancel  a  deed  alleged  to  have  been  pro- 
cured by  false  and  fraudulent  promises,  a  specific  averment 
that  the  grantee  did  not  intend,  at  the  time  he  made  said 
promise,  or  contract,  to  carry  out  the  same  is  not  necessary, 
if  from  the  facts  alleged  the  existence  of  his  fraudulent  intent 
not  to  carry  out  his  contract  can  be  clearly  inferred.^ 

Sec.  473.     The  jury  in  the  action  to  cancel  instruments  of 
conveyance. 
A  jury,  if  used  at  all  in  an  action  to  cancel  an  instrument 
of    conveyance,    sits    only   in    an    advisory    capacity,    and    as 
such  its  verdict  and  findings  must  be  treated." 

Sec.  474.    The  petition  need  not  allege  inadequacy  of  legal 
remedy. 

The  right  to  relief  does  not  depend  upon  the  adequacy  or 
inadequacy  of  the  plaintiff's  legal  remedies,  but  upon  the 
sound  discretion  of  a  court  of  equity,  to  be  admitted  or 
refused  according  to  its  own  idea  of  what  is  reasonable  and 
right.^ 

2Statev.  Williams,  39  Kan.  577,  illegality    consists.      Allegations    of 

18   Pac     727;    Railroad  v.    Commis-  fraud  or  illegality,  without  a  state- 

sioners,'  18  Kan.  169;   Clark  v.  Day-  ment  of   the  facts   constituting  the 

ton,   6   Neb.    192;    Pelton   v.   Bemis,  same    are    mere    legal     conclusions 

44  b    S    51    4  N    E    714;   Ockendon  and  of  no  force  m  a  pleading.     .No 

V    Barnes,   43   la.   615;   Railroad  v.  issue  is  presented  by  such  averments 

Neighbors    51   Miss.  412;    Smith  v.  and   no    proof    is    admissible   there- 

lliTool:    13    Barb.    209;    2    Kin-  under.     State  v.  Williams,  39  Kan. 

kead's    Code    Pleading,    See.    1,100.  579,   18   Pac.   727. 
The     pleader     did     not     undertake,  s  Blackburn  v.  Munson,  29   Okla. 

however,  to  state,  and  we  are  unable       510,  118  Pac   402;  -,  also   Skimes, 
to  learn  from  the  petition,  wherein       et  al.,  v.  Scott,  et  al.,  29  Okla.  364 
the    advertising,    offering    for    sale,       118  Pac.  394,  where  plaintiff  guilty 
or  sale  of  the  lands  were  defective      of  laches. 
or     fraudulent.       There     are     other  .  Mosier  v.  Walter,   17  Okla.  30o, 

charges  of  illegality  in  the  petition        ^^^^Z^    Walter,  17  Okla.  305. 
but  there  are  no  accompanying  facts  ^^^^"'^'^ Jj      ,    '  .  T^n      Tnr 

to    inform    the    court    in   what    the       87    Pac.    877;    1    Story  s    Eq.   Jur., 


§  475  merwine's  trial  op  title  to  land.  372 

The  Supreme  Court  of  our  State,  in  a  well  considered  case, 
has,  upon  this  subject,  well  said: 

''And  while  it  is  the  general  rule  that  a  contract  or  con- 
veyance, which  is  improvident  or  based  upon  an  inadequate 
consideration,  will  not  be  set  aside  for  these  reasons  alone, 
yet,  certainly,  where,  as  in  the  case  at  bar,  there  is  not  only 
nonperformance  and  clouding  of  title,  but  entire  want  of 
consideration,  and  proof  of  such  facts,  as  furnishing  in  itself, 
convincing  evidence  of  fraud,  this  court  will  not  hesitate  to 
deem  such  a  condition  a  sufficient  occasion  for  invoking  the 
equitable  remedy  of  cancellation.  In  such  a  ease,  the  exer- 
cise of  equitable  jurisdiction  is  not  dependent  upon  the 
inadequacy  of  the  legal  remedy,  but  rescission  and  cancella- 
tion may  be  sought  irrespective  of  any  question  of  a  remedy 
at  law."^ 

Sec.  475.     The  statutory  regulations  as  to  when  party  may 
rescind  a  contract. 
A  party  to   a  contract  may  rescind  the  same  in  the   fol- 
lowing cases  only: 

1.  If  the  consent  of  the  party  rescinding,  or  of  any  party 
jointly  contracting  with  him,  was  given  by  mistake,  or 
obtained  through  duress,  menace,  fraud  or  undue  influence, 
exercised  by  or  with  the  connivance  of  the  party  as  to  whom 
he  rescinds,  or  of  any  other  party  to  the  contract  jointly 
interested  with  such  party. 

2.  If  through  the  fault  of  the  party  as  to  whom  he  rescinds, 
the  consideration  for  his  obligation  fails  in  whole  or  in  part. 

3.  If  such  consideration  becomes  entirely  void  from  any 
cause. 

206,    602;    Jones   v.    Poles,    9   Wall.  John    Hancock,    etc..    v.    Dick,    114 

364;   Pom.,  Eq.  Jur.,   Sec.  221,   911,  Mich.  337,  72  N.  W.  179,  43  L.  R.  A. 

914,  1,377;   Gefken  v.  Graef,  77  Ga.  566;     Ranney    v.    Warren,    13    Hun 

340;    Shaeffer   v.    Sleade,    7    Blackf.  (N.   Y.),    11;    Holden  v.  Hoyt,    134 

(Ind.)    178.  Mass.   181. 

6  Garretson    v.     Wither  spoon,     15 
Okla.  473,  83  Pac.  415;  6  Cyc.  291; 


373  CONVEYANCE    OF    REAL    ESTATE,  §§476,477 

4.  If  such  consideration,  before  it  is  rendered  to  him,  fails 
in  a  material  respect,  from  any  cause;  or, 

5.  By  consent  of  all  the  other  parties/ 

Sec.  476.  Rescission  and  cancellation  allowed  for  mistake, 
when. 
A  stipulation  that  errors  of  description  will  not  avoid  a 
contract,  or  shall  be  the  subject  of  compensation,  or  both, 
does  not  take  away  the  right  of  rescission  for  fraud,  nor  for 
mistake,  where  such  mistake  is  in  a  matter  essential  to  the 
inducement  of  the  contract,  and  is  not  capable  of  exact  and 
entire  compensation.^ 

Sec.  477.     Canceling  and  rescinding — How  and  when  allowed. 

Rescission,  when  not  affected  by  consent,  can  be  accom- 
plished only  by  the  use,  on  the  part  of  the  party  rescinding, 
of  reasonable  diligence  to  comply  with  the  following  rules: 

1.  He  must  rescind  promptly,  upon  discovering  the  facts 
which  entitle  him  to  rescind,  if  he  is  free  from  duress,  menace, 
undue  influence,  or  disability,  and  is  aware  of  his  right  to 
rescind ;  and, 

2.  He  must  restore  to  the  other  party  everything  of  value 
which  he  has  received  from  him  under  the  contract;  or  must 
offer  to  restore  the  same,  upon  condition  that  such  party  shall 
do  likewise,  unless  the  latter  is  unable,  or  positively  refuses 
to  do  so.* 

7  Snyder,      1,135;      Wilson,     825;  Bank  v.  Taylor,  58  N.  W.    (S.  D.) 

North    Dakota,    Sec.    5,378     (1905),  297;    Fletcher  v.   Arnett,  57  N.  W. 

identical;      South      Dakota,      1,283  (S.  D.)    915;    Hull  ^.  Caldwell,   54 

(1903),    identical;    see   McNinch   v.  N.  W.    (S.  D.)    700:   see  Stevens  v. 

Northwest,   etc.,    23    Okla.   386,    100  Elliott,    118    Pac.    (Okla.)    407,   for 

Pac.  524 ;   Bank  v.  Maddox,  4  Okla.  rule  of  return  of  consideration  where 

583,  46  Pac.  563 ;   Davis  v.  Beman,  plaintiff  is  a  minor  Creek    freedman. 
60   N.   W.     (N.    D.)    836;    Fahy   v. 

Estuly,    55    N.    W.     (N.    D.)     580;  8  Snyder,      1,136;      Wilson,     826; 

Hilton'v.  Advance,  66  N.  W.  (S.  D.)  Dakota  Code,   3,590    (1887). 

816;  Rosmussen  v.  Reedy,  84  N.  W.  » Snyder,      1,137;      Wilson,     827; 

(S.    D.)     205;    Ames    v.    Burnham,  North   Dakota,   5,380    (1905),   iden- 

108   N.   W.    (S.   D.)    549;    National  tical;   South  Dakota,   1,285    (1903), 


§  477a  MERWINE  'S   TRLVL   OF   TITLE   TO   LAND.  374 

Sec.  477a.   Mental  incapacity  to  execute  a  deed. 

It  is  not  necessary,  in  order  to  entitle  one  to  have  a  deed 
canceled  upon  the  ground  of  mental  incapacity,  to  show  that 
he  was  at  the  time  of  the  execution  of  the  deed,  insane,  or 
so  mentally  weak  that  he  was  entirely  disqualified  to  trans- 
act any  business.  It  is  sufficient  to  show  that  his  mental 
weakness  and  infirmity  is  such  that  he  is  incapable  of  under- 
standing the  nature  and  magnitude  of  the  transaction,  and 
that  there  is  gross  inadequacy  for  the  conveyance.  From 
these  circumstances  imposition  or  undue  influence  will  be 
inferred,  and  they  alone  are  sufficient  to  secure  the  aid  of  a 
court  of  equity.  The  court  in  setting  forth  these  proposi- 
tions, quoted  from  an  opinion  by  Judge   Story,   as  follows: 

"Extreme  weakness  will  raise  an  almost  necessary  pre- 
sumption of  imposition,  even  when  it  stops  short  of  legal 
capacity;  and,  though  a  contract  in  the  ordinary  course  of 
things,  reasonably  made  with  such  a  person  might  be  per- 
mitted to  stand,  yet  if  it  appeared  to  be  of  such  a  nature  as 
that  such  person  could  not  be  capable  of  measuring  its  extent 
or  importance,  its  reasonableness,  or  its  value  fully  and  fairly, 
it  cannot  be  that  the  law  is  so  much  at  variance  with  com- 
mon sense  to  uphold  it. ' '  ^'^ 

identical.     One  cannot  claim  a  bene-  24  L.  Ed.  260;  Harding  v.  Wheaton, 

fit  and  repudiate  the  burden.     Wil-  2   Mason,   378;    Harding   v.   Handy, 

loughby   V.    Fidelity,    16    Okla.    546,  11  Wheat.  103,  6  L.  Ed.  429;  Jones 

185  Pac.  713.     The  property  received  v.  Magruder,   87  Va.  360,   12  S.   E. 

must  be  returned.     Guss  v.  Nelson,  792;    Fishburn  v.   Ferguson,  84  Va. 

14    Okla.    296,    78    Pac.    170.      The  87,   4   S.   E.   575;    Turner   v.    Utah, 

consideration     must     be     returned.  etc.,     10     Utah,     61,     37     Pac.     91; 

Johnson     v.     Bennadi,     52     N.     W.  Taylor    v.    Atwood,    47    Conn.    498; 

(S.  D.)   1,057;  Lovell  V.  McGaughey,  Ashmead  v.  Reynolds,  134  Ind.  139, 

66    N.    W.     (S.    D.)     1,085.      There  38    N.    E.    763,    39    Am.    St.    Rep. 

must  not  be  any  laches.     Equitable  238;     Ikerd    v.    Beavers,    106    Ind. 

V.  Detroit,    97    N.   W.    (S.   D.)    17.  483,  7  N.  E.  326;  Wiikie  v.  Sassen, 

Payments   made   prior   to    discovery  123   la.   421,   99   N.  W.    124;    Clark 

do  not  prevent  rescinding  after  dis-  v.   Lopez,    75   Miss.    932,    23    South. 

covery.     Grewing  v.  Wmn.,  80  N.  W.  648 ;    Richard    v.    Donnert,    72    Cal. 

(S.  D.)    176.  207,      13     Pac.     584;      Walling     v, 

loPaulter    v.    Mnnuel,     108    Pac.  Thomas,    133    Ala.    426,    31    South. 

752;  Allore  v.  Jewell,  94  U.  S.  506,  982. 


375  CONVEYANCE   OP    REAL   ESTATE.  §§  478-478b 

Sec,  478.    The  rule  as  to  notice. 

The  rule  sustained  by  the  better  weight  of  authorities  is, 
that  where  there  has  been  no  attempt  to  perform  any  part 
of  the  contract,  and  the  time  for  performance  has  expired, 
the  vendor  may  rescind  without  notice  to  the  vendee  of  his 
intention  to  do  so,  and  convey  the  land  to  another." 

Sec.  478a.   Allegation  of  offer  to  restore  consideration. 

In  an  action  for  rescission  and  cancellation  of  a  deed  fraud- 
ulently obtained,  an  allegation  in  the  petition  that  plaintiff 
is  ready  and  willing  to  execute  and  deliver  a  deed  for  the 
property  is  sufficient  offer  to  restore  to  bring  him  within  the 
terms  of  the  statute.^^ 

Sec.  478b.  Federal  court  power  to  cancel  conveyance  of 
Indian  lands. 
Where  the  Indian  department,  under  the  provisions  of  law, 
has  made  a  reservation  of  tribal  lands  for  a  town  site,  and 
there  are  outstanding  invalid  conveyances  which  cloud  the 
title  of  purchasers  of  lots,  the  United  States  may  maintain  a 
suit  in  equity  for  the  cancellation  of  such  instruments.'^ 

11  Mosier  v.  Walter,  17  Okla.  305,  as  to  create  a  reasonable  belief  oa 

87    Pac.    877;    Kennedy    v.    Embry,  the  part  of  the  vendor  that  he  has 

72  Tex.  387,  10  S.  W.  88.     "Nor  do  forsaken  his  contract,  and  no  longer 

we  think  notice  of  the  disaffirmance  considers    himself    obligated    by    it, 

of  the  contract  was  recessary  to  be  the    vendor    may    rescind     without 

pleaded,    since    under    the    facts    in  notice  to  the  vendee  of  his  intention 

this  case,  no  such  notice  was  neccs-  to  do  so."     Herbert  v.  Stanford,   12 

sary    to    be    given.       Some    of    the  Ind.  503;    Knappen  v.  Freeman,  47 

authorities  go  to  the  extent  of  hold-  Minn.  491,  50  N.  W.  533,  Kirby  v. 

ing  that  no  notice   whatever   is  re-  Harrison,  2  0.  S.  326,  59  Am.  Dec. 

quired  to  be   given,  other  than   the  677. 

institution  of  the  suit,  and  all  unite  i^Gedney   v.    Chappcll,    110    Pac. 

in     upholding     the     doctrine     that  (Okla.)    1,105. 

where,  in  purchase  and  sale  of  real  i^  United    States  v.   Dowden,    194 

estate,  and  the  vendee  has  so  acted  Fed.  476. 


§§479,480        merwine's  trial  of  title  to  land.  376 

Sec.  479.     Form  for  petition  for  cancellation  of  deed. 

District  Court  of  County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No. . 

,  Defendant. 

PETITION. 

Comes  now  the  plaintiff,  and,  for  his  cause  of  action  against 
the  defendant,  alleges  and  states : 

1.  That  on  the  day  of ,  19 — ,  plaintiff  was  the 

owner  in  fee  simple  and  possessed  of  the  following  lands,  to-wit : 
(Here  describe  same.) 

2.  That  on  the  day  of  ,  19 — ,  the  defendant 

procured  and  caused  plaintiff  to  execute  and  deliver  to  him  a 
deed  of  said  real  estate,  conveying  the  same  to  the  defendant  in 
fee  simple,  by  the  fraudulent  representation  to  the  plaintiff  that 
said  deed  of  conveyance  was  a  lease  on  said  lands  to  the  defend- 
ant for  the  term  of years. 

3.  That  the  plaintiff,  being  an  ignorant  person  and  unable  to 
read  and  write,  and  having  kuown  defendant  for  a  long  time, 
and  believing  him  to  be  honest  and  of  undoubted  integrity,  and 
relying  on  said  representations  of  defendant,  but  for  which  he 
would  not  have  executed  said  lease,  executed  and  delivered  the 
said  deed  to  defendant,  as  and  for  a  lease,  and  plaintiff  believed 
it  to  be  such  lease,  and  accepted  it  for  no  other  purpose  whatever. 

Wherefore,  the  premises  considered,  plaintiff  prays  that  said 
deed  be  ordered  to  be  delivered  up,  canceled  and  held  for  naught, 

and  for  all  proper  relief.  , 

Attorneys  for  Plaintiff. 

Sec.  480.    Another  form  petition  for  cancellation  of  deeds, 
mortgage  and  lease. 

District  Court  of  County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

and  ,  Defendants.  * 


377  CONVEYANCE    OP    REAL   ESTATE.  §  480 

PETITION. 

Comes  now  the  plaintiff,  and,  for  her  cause  of  action  herein, 
alleges  and  states : 

1.  That  she  is  a  citizen  of  the Tribe  of  Indians,  of  the 

blood;  that  she  was  duly  enrolled  as  such  citizen  and 

blood  upon  the  enrollment  records  by  the  commissioner  to  the 

Five  Civilized  Tribes,  on  the day  of ,  19—,  as  of 

the  age  of  years,  and  as  such  citizen  she  received  an 

allotment  of  one  hundred  and  sixty  acres  of  land,  described  as 
follows,  to-wit:   (Here  describe  it.) 

2.  That  while  she  was  under  the  age  of  eighteen  years,  she 
made,  executed,  acknowledged  and  delivered  the  following  in- 
struments of  conveyance  to  the  following  persons,  all  of  which 
were  made  without  any  order,  decree  or  authority  of  any  court, 
and  all  of  which  affect  the  real  estate  hereinabove  specifically 
described : 

(a)   One  certain  oil  and  gas  lease  to  the  defendants,  , 

and  ,  executed  on  or  about  the  day  of 

^  19 — ^  and  recorded  in  the  records  of  the  register  of  deeds 

of  said  county  in  book ,  at  page 


(h)   One   certain   warranty   deed   to   the   defendant,   , 

executed  on  or  about  the day  of ,  19—,  recorded 

in  the  records  of  the  register  of  deeds  of  said  county  in  book 
,  at  page  . 

(c)   One  certain  oil  and  gas  lease,  to  the  defendants,  

and  ,  executed  on  or  about  the  day  of  , 

19 — ^  recorded  in  the  records  of  the  register  of  deeds  of  said 
county,  in  book ,  at  page 


(d)  One  certain  note  and  mortgage,  to  the  defendant, , 

executed  on  or  about  the  day  of  ,  19 — ,  and  re- 
corded in  the  records  of  the  register  of  deeds  in  said  county,  in 
book ,  at  page . 

(e)  One  certain  agricultural  lease  to  the  defendant,  , 


executed  on  or  about  the  day  of  ,  19—,  for  the 

term  of years  from  said  date,  and  recorded  in  the  records 


§  481  MERWINE  'S   TRLU.    OF   TITLE   TO   LAND.  378 

of  the    register  of  deeds   in  said  county,   in  book  ,   at 

page  . 

3.  That  she  is  still  the  o^^^le^  of  said  real  estate  herein  spe- 
cifically described ;  that  said  real  estate  is  wild  and  uncultivated 
land;  that  each  of  said  instruments  is  a  cloud  on  plaintiff's  title 
thereto,  to  her  great  and  irreparable  damage;  that  the  consid- 
eration received  for  said  instruments  was  spent  by  her  while 
under  the  age  of  eighteen  years,  and  she  has  none  of  it  now  in 
her  possession,  and  is  unable  to  restore  the  same ;  that  each  of 
said  deeds,  leases  and  mortgage  were  void  and  did  not  convey 
any  interest  therein  to  the  parties,  lessees,  grantee,  or  mortgagee 
therein. 

Wherefore,  plaintiff  prays  that  said  deed  and  leases,  and  said 
note  and  mortgage  be  canceled,  set  aside,  held  for  naught  and 
ordered  surrendered,  and  that  she  be  given  such  other  and 
further  relief  as  the  nature  of  the  case  may  require. 


Attorneys  for  Plaintiff. 


Sec.  481.    Decree  of  court  canceling  instruments  set  forth  in 
the  petition. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

and  ,  Defendants. 


DECREE. 

Now,  on  this day  of ,  this  cause  coming  on  for 

hearing  upon  the  petition,  answer  thereto  and  the  reply,  and 
was  heard  upon  the  evidence  and  arguments  of  counsel,  upon 
due  consideration  thereof,  the  court  finds : 

].    That  at  the  times  of  the  execution  of  the  oil  and  gas  leases 

to  the  defendants,  and ,  recorded  in  book , 

at  page  ,  in  the  office  of  the  register  of  deeds  in  said 

county,  and  the  execution  of  the  deed  to  the  defendant,  , 

recorded  in  book  ,  at  page  >  in  the  office  of  the 


Qiyg  CONVEYANCE    OF    REAL   ESTATE.  §  482 

register  of  deeds  in  said  county,  and  the  execution  of  the  note 

and  mortgage  to  the  defendant, ,  recorded  in  book , 

at  page  ,  in  the  office  of  the  register  of  deeds  of  said 

county,  the  said  plaintiff  was  a  citizen  of  the  Creek  Tribe  of 
Indians  of  the  half-blood,  and  under  the  age  of  eighteen  years; 
that  said  land  was  allotted  to  her  as  such  citizen;  that  she  has 
squandered  the  consideration  she  received  therefor,  and  is  unable 

to  return  the  same. 

It  is  Therefore  Ordered,  Adjudged  and  Decreed  by  the 
court  that  each  of  the  said  instruments  aforesaid  be,  and  the 
same 'are,  hereby  canceled,  set  aside  and  held  for  naught,  and 
that  the  plaintiff  recover  from  said  defendants  and  eachof 
them,  her  costs,  herein  expended,  taxed  at  the  sum  of  $  , 

for  the  payment  of  the  same  let  an  execution  issue. 

Done  this day  of ,  19—- 

— — ~    J 

Judge  of  the  District  Court. 

Sec.  482.    Another  form  for  decree  for  cancellation  of  deeds. 

District  Court  of County,  State  of  Oklahoma. 

. ,  as  Guardian 

of  the  Person  and  Estate  of 
,  a  minor,  Plaintiff, 


No. 

vs. 

and ,  Defendants. 


DECREE  CANCELING  CONVEYANCES. 

This  cause  came  on  to  be  heard  upon  the  petition  of  the  plain- 
tiff the  disclaimer  filed  by  the  defendant,  ,  the  answer  of 

the  defendants, , and ,  and  the  reply  to  said 

answer,  after  hearing  the  e^adence  in  said  cause  and  the  argu- 
ment of  counsel,  and  having  given  the  same  due  consideration, 
the  court  finds  that  said  defendants,  and  each  of  them  have 
submitted  themselves  to  the  jurisdiction  of  the  court,  and  upon 
the  issues  joined  by  said  pleadings,  the  court  finds  m  favor  of 
the  plaintiff  and  against  said  defendants  and  each  of  them. 


§482  MEK wine's  trial  of  title  to  land.  380 

It  is  Therefore  Ordered,  Adjudged  and  Decreed,  that  each 
of  the  following  deeds  set  out  in  plaintiff's  petition,  purporting 
to  convey  the  following  described  real  estate,  to-wit :  (Here  de- 
scribe it)  be  canceled,  set  aside  and  held  for  naught: 

1.  A  deed  from  to  ,  executed  on  the  

day  of  ,  19 — ,  and  recorded  in  the  office  of  the  register 

of  deeds  of County,  State  of  Oklahoma,  in  book , 

at  page  . 

2.  A  deed  from  to  and  ,  executed  on 

the day  of ,  19 — ,  and  recorded  in  the  office  of  the 

register  of  deeds  of  County,   Oklahoma,  in  deed  book 

,  at  page . 

3.  A  deed  from and to ,  executed  on  the 

day  of  ,  19 — ,  and  recorded  in  the  office  of  the 

register  of  deeds  of  County,   Oklahoma,  in  deed  book 

,  at  page  . 

4.  A  deed  from and  to  and  , 

executed  on  the day  of ,  19 — ,  and  recorded  in  the 

office  of  the  register  of  deeds  of  County,  Oklahoma,  in 

deed  book ,  at  page . 

5.  A  deed  from  and  to  ,  executed  on 

the day  of ,  19 — ,  and  recorded  in  the  office  of  the 

register  of  deeds  of  County,   Oklahoma,  in  deed  book 

,  at  page  . 

It  is  Therefore  Ordered,  Adjudged  and  Decreed,  that  each 
of  the  aforesaid  conveyances  be  canceled,  set  aside  and  held  for 
naught ;  and  it  is  considered  that  said  plaintiff  recover  of  said 
defendants  and  each  of  them,  his  costs  of  suit  herein,  taxed  at 
$ ,  for  the  ptiyment  of  which  let  execution  issue. 

Done  this day  of ,  19 — . 


Judge  of  said  District  Court. 


381 


CONVEYANCE    OP    REAL   ESTATE. 


§483 


4.     CONVEYANCES— REFORMATION  OF 
INSTRUMENTS  OF. 


SECTION 

483.  The    parties    defendant    in    an 

action    to    reform   an   instru- 
ment of  conveyance. 

484.  The  petition   may  be   amended 

so   as   to   reform   a   mortgage 
sued  on. 

485.  The    nature    of    the    action   to 

reform    a    deed    or   other    in- 
strument of  conveyance. 

486.  When  a  court  of  equity  should 

interfere. 

487.  The    instrument    may    be    re- 

formed and   specific   perform- 
ance decreed. 

488.  The  rule  as   to   hona  fide  pur- 

chasers. 

489.  The    lien    of    a    mortgage    re- 

formed   prior    to    the    lien    of 
attaching  creditors,  when. 

490.  A  deed  may  be  corrected  so  as 

to   make  the  grantee  assume 
existing  mortgages,  when. 

491.  Party  seeking  reformation  must 

have  superior  equity. 


SECTION 

492.  Mutuality  not  always  an  essen- 

tial   requisite. 

493.  Equity  will  interfere  sometimes 

to  correct  a  mistake  of  law. 

494.  Estoppel. 

495.  Form    for    petition    correcting 

description  in  a  mortgage 
and  setting  aside  a  release  of 
mortgage  made  under  mis- 
take. 

496.  Decree      of     court      correcting 

mortgage,  finding  service  by 
publication  and  appointment 
of  guardian  ad  litem  for 
minor  defendants. 

497.  Procedure  by  which  a   deed  is 

reformed — Form  for  petition. 

498.  Form  for  praecipe. 

499.  Form   for    summons. 

500.  Form   for   affidavit   for   service 

by  publication. 

501.  Form  for  the  notice. 

502.  Form  for  proof  of  publication. 

503.  Form      for     decree     reforming 

deeds. 


Sec.  483.  The  parties  defendant  in  an  action  to  reform  an 
instrument  of  conveyance. 
Each  and  every  party  vrhose  rights  will  be  affected,  either 
directly  or  consequentially,  must  be  made  parties  defendant.^ 
The  rule  is  that  where  a  mistake  runs  through  successive 
deeds  and  reformation  is  asked,  every  person  who  has  given 
an  instrument  where  the  mistake  occurs,  or  if  such  persons 
be  dead,  the  heirs,  are  necessary  parties.- 


1  3  Bates'  Pleading  and  Practice, 
Parties  and  Forms,  Sec.  2,529,  citing 
Oliver  v.  Clifton,  39  Ark.  187; 
Center  v.  Lindsey,  21  Utah,  192, 
60  Pac.  o59;  Cumberland  v.  Pad- 
gett, 61  Atl.  (N.  Y.  Eq.)  837; 
Busby  v.  Littlefield,  31  N.  H.  193; 


:Morgan  v.  Meuth,  60  Mich.  238,  27 
iX.  W.  509;  Pierce  v.  Faurce,  47 
Me.  507;  Wyche  v.  Green,  32  Ga. 
34;  Moore  v.  Munn,  69  111.  591. 

2  3  Bates'  Pleading  and  Practice, 
Parties  and  Forms,  Sec.  2,530,  citing 
Indian   v.  Wooten,   48   Fla.   271,  37 


§§484,485        merwine's  trial  of  title  to  land.  382 

In  such  equitable  actions  it  is  necessary  to  make  all  par- 
ties interested,  parties  to  the  suit.  When  the  land  has  passed 
through  several  owners  by  successive  conveyances  or  a  series, 
all  the  grantors,  or  their  heirs,  if  they  themselves  are  dead, 
are  necessary  parties  defendant.^ 

Sec.  484.  The  petition  may  be  amended  so  as  to  reform 
a  mortgage  sued  on. 
A  petition  setting  forth  a  defective  description  of  the  land 
may  be  amended  to  give  the  correct  description,  so  as  to 
conform  to  the  intentions  of  the  parties  thereto,  and  such 
amendment  will  not  introduce  a  new  cause  of  action.  And  a 
foreclosure  suit  will  not  be  barred  by  limitation  of  time, 
although  the  amendment  was  made  more  than  five  years 
after  the  note  and  mortgage  were  executed.* 

Sec.  485.  The  nature  of  the  action  to  reform  a  deed  or  other 
instrument  of  conveyance. 
The  power  is  peculiarly  an  equitable  one,  and  its  exercise 
should  be  used  with  a  great  deal  of  care  and  caution.  In- 
deed, it  is  and  should  be  exercised  with  more  caution  by  the 
chancellor  than  in  the  rescission  and  cancellation  of  a  deed 
or  other  instrument  in  writing.  He  who  seeks  to  reform  an 
instrument  of  conveyance  on  the  ground  of  mistake  only, 
must  establish  most  clearly  and  satisfactorily  that  the  alleged 
intention  to  which  he  asks  it  to  be  conformed,  continued 
concurrently  in  the  minds  of  the  parties  down  to  the  time 
of  its  execution.^  It  has  been  held  that  the  evidence  of  the 
mistake   or   other   cause   requiring   a  reformation   of  the   in- 


So.    731;    Flanders    v.   McClenahan,  4  Keys  v.   Lardner,   59    Kan.   545, 

24    la.    486;     Farm    v.    Detroit,    12  53  Pac.  758. 

Mich.  445.  s  Phillips'     Code    Pleadings,     Sec. 

sPomeroy's    Remedies,    Sec.    371;  509 ;  Bispham's  Principles  of  Equity, 

2     Kinkead's    Code    Pleading,     Sec.  Sec.  469. 
1,099;  Witte  V.  Lockwood,  39  0.  S. 
143. 


383  CONVEYANCE    OF    REAL   ESTATE.  §  486 

strument  must  be  clear  and  convincing."  And  the  court 
must  be  satisfied  beyond  a  reasonable  doubt  of  the  mutual 
mistake  of  both  parties.'^  But  where  a  mutual  mistake  is 
conceded,  the  ordinary  rule  as  to  conveyances  controls  as  to 
the  consideration,  the  performance  and  the  prejudices.^  The 
party  alleging  the  mistake  should  show  exactly  in  what  it 
consists.^ 


Sec.  486.    When  a  court  of  equity  should  interfere. 

A  court  of  equity  will  always  interfere  and  will  reform  a 
deed  which  includes  property  the  parties  never  intended  to 
be  conveyed,  and  which  the  grantor  was  under  no  obligation 
to  convey,  and  which  the  grantee  in  good  conscience  has  no 
right  to  retain.^" 

The  rules  of  law  applicable  to  the  reformation  of  instru- 
ments conveying  or  incumbering  real  estate,  are  plain  and 
founded  in  good  sense.  These  rules  are  well  settled,  and  where 
the  agreement  is  reduced  to  writing  and  omits  or  contains  terms 
or  stipulations  contrary  to  the  common  intention  of  the  parties, 
the  instrument  will  be  corrected  so  as  to  conform  to  the  real 
intention  of  the  parties.^^  The  mistake  must  be  mutual  and 
common  to  both  parties  to  the  instrument.    It  must  appear  that 


e  Critchfield    v.    Kline,    39    Kan.  8  Conoway  v.  Gore,   24  Kan.  389. 

721,   18   Pac.   898;    Baltzer  v.   Rail  »  Hope  v.  Bourland,  21  Okla.  864, 

way,  6  Sup.  Ct.  Rep.  216;  Grizwold  98  Pac.  583. 

V.   Hazard,  26   Fed.    135;    Gilmartin  lo  Burton  v.   Handy,   54   Kan.   13, 

V.  Urquart,  1  So.   (Ala.)   897;  Fred-  37  Pac.  108;   2  Pomeroy's  Eq.  Jur., 

erick  v.  Henderson,  7  S.  W.    (Mo.)  Sec.    843;     Beson     v.    Nearkve,    33 

186;     Little    v.    Webster,    1    N.    Y.  N.    W.    38;     Canedy    v.    Marcy,    13 

Sup.    Ct.   315;    Rossin   v.   Lynn,   23  Gray,    373;     Stidwell    v.    Anderson, 

Fed.   107;   Cimmins  v.  Monteith,  16  21    Conn.     139;     Clayton    v.    Freet, 

N.    W.     (la.)     591;    Wachendorf   v.  10  0.  S.  544. 

Lancaster,    14    N.    W.     (La.)     316;  n  Hope  v.  Bourland,  21  Okla.  864, 

Alilbon  V.  WolfT,  11  Atl.   (Va.)    799.  98  Pac.  580;    Horner  v.  Mowine,  20 

7Bodwell     V.     Heaton,     —     Kan.  Wall.  478,  22  L.  Ed.  595;   Kerr  on 

31,     18     Pac.     901;     Brundidge     v.  Fraud  and  Mistake,  419. 
Blair,    23     Kan.    482;     Schaefer    v. 
Wells,  69  Kan.  25,  76  Pac.  436. 


§  487  MER wine's  trial  of  title  to  land.  384 

both  have  done  what  neither  intended.'-  And  where  the  minds 
of  the  parties  have  never  met  ihere  is  no  contract,  and,  hence, 
none  to  be  rectitied/^ 

To  warrant  the  court  to  reform  any  instrument  of  convey- 
ance, the  mistake  must  have  been  material,  and  must  not 
have  occurred  by  the  fault  of  the  party  asking  its  reforma- 
tion/* 

Sec.  487.    The  instrument  may  be  reformed  and  specific  per- 
formance decreed. 

The  Supreme  Court  of  this  State  in  a  very  recent  decision 
held  that  when,  through  accident  or  mistake,  from  an  exec- 
utory contract  or  instrument,  founded  upon  a  valid  con- 
sideration, for  the  sale  of  real  estate,  there  was  omitted 
matter  intended  to  have  been  included,  it  may  be  reformed 
and  specific  performance  decreed.'^ 

The  minority  of  the  courts,  not  having  full  equity  juris- 
diction hold  that  a  contract  within  the  statute  of  frauds 
may  not  be  reformed,  so  as  to  extend  the  contract  beyond 
what  its  terms  import/"  However,  the  majority  of  the  Amer- 
ican courts  which  have  full  equity  jurisdiction  hold  that 
equitable  relief  by  way  of  reformation  may  be  applied  with- 


12  Hope  V.  Bourland,  i21  Okla.  a  decree  that  will  injure  another  in 
864,  98  Pac.  580 ;  Rooke  v.  Kensing-  order  that  the  plaintiff  may  not 
ton,  2  K.  and  J.,  Sec.  753;  Eaton  suffer  loss.  Drovers,  etc.,  v.  Bank, 
V.  Benton,  34  Beavan,  49G.  19  Okla.  302,  91  Pae.  850. 

13  Hope  V.  Bourland,  21  Okla.  « At  wood  v.  Mikesa,  29  Okla. 
586,  98  Pac.  580.  69,  115  Pac.  1,011. 

14  Marshal  v.  Homier,  13  Okla.  is  Atwood  v.  Mikesa,  29  Okla.  69, 
264,  74  Pac.  368.  Equity  will  not  115  Pac.  1,011;  Elder  v.  Elder,  10 
subject  the  property  of  one  party  Me.  80,  25  Am.  Dec.  205;  Glass  v. 
to  the  payment  of  the  debt  of  an-  Hulbert,  102  Mass.  24,  3  Am.  Rep. 
other;  and  a  mistake  will  not  be  418;  Dwight  v.  Pomeroy,  17  Mass. 
corrected  in  an  equitable  action,  303,  9  Am.  Dec.  148;  Attorney- 
unless  the  plaintiff  shows  by  his  general  v.  Sitwell,  5  L.  J.  Exch.  86, 
bill    that    without    such    correction  93  I.,  Y.  and  C.  Exch.  559. 

it   will    suffer    loss   or    injury;    but 
even  then  the   court   will  not  enter 


385  CONVEYANCE    OF    REAL    ESTATE.  §  §  4:88,  489 

out  restriction,  because  the  purpose  of  the  statute  was  to 
promote  justice  and  prevent  wrong,  and  not  to  hinder 
justice.^'^ 

Sec.  488.    The  rule  as  to  bona  fide  purchasers. 

The  rules  of  law  applicable  to  the  reformation  of  instru- 
ments of  conveyance  apply  as  to  the  original  parties  only, 
and  equity  will  not  interfere  as  against  bona  fide  purchasers/* 


Sec.  489.  The  lien  of  a  mortgage  reformed  prior  to  the  lien 
of  attaching  creditors,  when. 

A  mortgage  lienholder  on  property  attached  may  intervene 
where  the  defendant  in  the  action  is  served  by  publication 
only,  and  makes  default,  and  such  intervener  may  ask  that 
the  mortgage  which  purports  to  be  a  lien  on  a  different 
piece  of  land  may  be  reformed  on  the  ground  of  mutual 
mistake  of  the  defendant  and  himself  in  the  description,  so 
that  it  may  be  a  lien  on  the  property  attached  as  was  the 
intention  of  both  parties  to  the  mortgage.^" 

Attaching  creditors  on  land  cannot  resist  the  proper  ap- 
plicant to  have  the  mortgage  reformed  so  as  to  make  the  lien 
cover  the  property  attached  and  become  a  prior  lien.-*' 


"Ahvood    V.    Mikesa,    29    Okla.  Hall,  3  Paige   (X.  Y.),  313;  Gower 

69,    115    Pac.     1,011;    Thompson    v.  v.     Sterner,     2     Whart.     (Pa.)     75; 

Marshall,  36  Ala.  504;  76  Am.  Dec.  Flaigler    v.    Peiss,    3    Rawle    (Pa.), 

328;     Blackburn    v.     Randolph,    33  345;     Blodgett    v.    Hobart,    18    Vt. 

Ark.    119;    Murphy    v.    Rooney,    45  418,  2  Pom.  Eq.  Jr.    (2d  ed.).  Sees. 

Cal.    78;     Morrison    v.    Collier,    79  864-866. 

Ind,   417;    Dutch   v.   Boyd,   81    Ind.  is  Byrne  v.   Ft.   Smith,    1   Ind.  T 

146;    Moate    v.    Buchanan,    11    Gill  680,  43   S.  W.  957. 

and  J.   (Md.)    314;   Smith  v.  Greely,  is  Bodwell    v.    Heaton,    40    Kan. 

14  Jv\  H.   378;    Tilton  v.   Tilton,   9  36,   18  Pac.  901. 

N.  H.  385;   DePeyster  v.  Hasbrook,  20  Bush    v.    Bush,    33    Kan.    556, 

11  N.  Y.  582;  Gouverenor  v.  Titus,  6  Pac.  794. 
6   Paige    (N.   Y.),   347;    Wishall   v. 


§§490-493        MER wine's  trial  op  title  to  lakd.  386 

Sec.  490.    A  deed  may  be  corrected  so  as  to  make  the  grantee 
assume  existing  mortgages,  when. 
The  court  has  power  to  correct  a  mutual  mistake  of  the 
parties  so  as  to  make  the  grantee  assume  and  agree  to  pay 
mortgages  against  the  real  estate  conveyed.^^ 

Sec.    491.    Party   seeking   reformation   must   have   superior 
equity. 

It  is  a  maxim  in  equity  that  he  who  seeks  equity,  must  do 
equity;  and  he  who  comes  into  court  asking  for  the  reforma- 
tion of  some  instrument  of  conveyance  must  stand  upon  some 
equity  superior  to  that  of  the  party  against  whom  he  seeks 
it.^^ 

Sec.  492.    Mutuality  not  always  an  essential  requisite. 

Where  the  terms  of  the  bargain  and  sale  of  real  estate  have 
been  agreed  upon  by  the  parties  and  thoroughly  understood 
by  each  of  them,  but  the  terms  and  conditions  of  the  per- 
formance of  the  contract  by  mistake  were  not  entered  into 
the  written  contract,  so  as  to  express  the  intention  and  mean- 
ing of  the  parties,  as  they  previously  understood  it,  a  court 
of  equity  will  correct  the  instrument  of  conveyance  so  as  to 
make  it  conform  to  the  contract  originally  agreed  upon.  And 
where  the  terms  of  the  agreement  prior  to  the  making  of  an 
instrument  of  conveyance  were  understood  and  agreed  upon, 
it  is  not  always  an  essential  requisite  that  each  of  the  parties 
understand  it  exactly  alike.^^ 

Sec.  493.     Equity  will  interfere  sometimes  to  correct  a  mis- 
take of  law. 
Generally  speaking,   courts   of  equity  will  not  reform  in- 
struments so  as  to  correct  a  mistake  of  law,  but  such  courts 

21  Stephenson  v.   Elliott,   53   Kan.  Pac.  398;  Holcomb  v.  Thompson,  50 

550,    3G    Pac.    980.      And    when    so  Kan.  59S,  32  Pac.  1,091. 

corrected,  a  personal  judgment  may  22  Connoway  v.  Gore,  21  Kan.  725. 

be    secured    against    the    party    as-  23  Drummond    v.    Krebs,    8    Kan. 

suming  the  mortgage.     Ibid;  Burn  App.    180,    55    Pac.    478. 
ham    V.    Larkin,    36    Kan.    246,    13 


387 


CONVEYANCE    OF    REAL    ESTATE. 


§494 


do  sometimes  interfere  to  correct  mistakes  of  law  occurring 
to  parties.  A  well  known  and  able  jurist  has  said  on  this 
subject : 

"Wherever  a  person  is  ignorant  or  mistaken  with  respect 
to  his  own  antecedent  and  existing  private  legal  rights, 
interests,  estates,  duties,  liabilities  or  other  relation,  either  of 
property  or  contract  or  personal  status,  and  enters  into  some 
transaction,  the  legal  scope  and  operation  of  which  he  cor- 
rectly apprehends  and  understands,  for  the  purpose  of  affect- 
ing such  assumed  rights,  interests  or  relations,  or  of  carrying 
out  such  assumed  duties  or  liabilities,  equity  will  grant  its 
relief,  defensive  or  affirmative,  treating  the  mistake  as 
analagous  to,  if  not  identical  with,  a  mistake  of  fact."^'' 

Sec.  494.    Estoppel. 

There  can  be  no  estoppel  preventing  the  reformation  of  an 
instrument  as  against  one  whose  situation  is  no  different 
from  what  it  would  be  had  there  been  no  mistake  therein."^ 


24  Jeakins  v.  Frazier,  64  Kan. 
267,  67  Pac.  854;  2  Pom.  Eq.  Jur., 
Sec.  849;  Pvenard  v.  Clink,  91  Mich. 
1,  51  X.  W.  602.  The  equitable 
remedy  of  reformation  is  not  lim- 
ited to  cases  of  mutual  mistake. 
Where  mistake,  unmixed  with  fraud, 
is  the  basis  of  the  relief  sought, 
it  must  be  a  mistake  common  to 
both  parties;  but  the  remedy  is 
available  whereby  the  mistake  of 
one  party,  induced  by  the  fraud  of 
another,  there  is  omitted  from  a 
deed,  land,  which  it  was  stipulated, 
should  be  conveyed,  and  which  the 
first  party  was  led  to  believe  was 
covered  by  the  description.  Cox  v. 
Beard,  75  Kan.  369,  89  Pac.  671; 
Welles  V.  Yates,  44  N.  Y.  525; 
Husted  V.  Van  Xess,  158  X.  Y. 
104;  52  X.  E.  645;  Kyle  v,  Fehley, 
81  Wis.  67,  51  X.  W.  257,  29  Am 
St.  Rep.  866;  Place  v.  Johnson,  20 
Minn.  219,  229   (Gil.,  198)  ;  Crooks- 


ton  Imp.  Co.  V.  Marshall,  57  Minn. 
333,  59  X.  W.  294,  47  Am.  St.  Rep. 
612;  Simmons  Creek  Coal  Co.  v. 
Doran,  142  U.  S.  417,  12  Sup.  Ct. 
239,  35  L.  Ed.  1,063;  Higgins  v. 
-Parsons,  65  Cal.  280,  3  Pac.  881, 
Kinney  v.  Ensminger,  87  Ala.  340, 
6  So.  72;  Jones  v.  Warren,  134 
X.  C.  390,  46  So.  740;  Archer  v 
Lumber,  24  Ore.  341,  33  Pac.  526 1 
McCormick  v.  Woulph,  11  S.  D.  252, 
76  X.  W.  929;  Goodenow  v.  Curtis, 
18  Mich.  298;  Citizens  v.  Judy, 
146  Ind.  322,  43  X.  E.  259;  San- 
ford  V.  Gates,  21  Mont.  277,  53  Pac. 
749;  Dane  v.  Berber,  28  Wis.  216, 
24  Am.  &  Eng.  Enc.  of  Law,  652; 
2  Current  Law,  1,492;  3  Pom.  Eq. 
Jur.,  Sec.  1,376;  3  Page  on  Con- 
tracts, Sec.  1,239;  42  Cent.  Dig. 
1,111. 

25  Detweiler  v.  Swartley,  74  Kan. 
88,  86  Pac.   141. 


§  495  merwine's  trial  of  title  to  land.  388 

Sec.  495.  Form  for  petition  correcting  description  in  a  mort- 
gage and  setting  aside  a  release  of  mortgage 
made  under  mistake. 

In  the  District  Court  of  County,  State  of 

Oklahoma. 


vs. 


-,  Plaintiff, 

-,  a  minor,  and ,  a  minor,  Defendants. 


No. 


PETITION. 

Comes  now  the  plaintiff  in  the  above  entitled  action  and  re- 
spectfully shows  to  the  court  that  on  the  —  day  of , 

19 — ^  defendant,  ,  and  his  wife,  ,  made,  executed 

and  delivered,  under  their  hands  and  seals,  a  mortgage,  of  which 
the  following  is  a  true  copy:  (Here  copy  mortgage.) 

That    thereafter,    ,    wife    of    ,    died    in    

County,  Oklalioraa,  leaving  surviving  her  as  her  only  heirs,  the 
defendants  above  named ;  that  the  description  given  in  said  mort- 
gage as  the  south  half  of  the  northeast  quarter  and  the  north 
erroneous  in  this;  that  the  lands  were  described  in  said  mort- 
gage as  the  south  half  of  the  northeast  quarter  and  the  north 
half  of  the  southwest  quarter  of  section  twenty-seven  (27), 
township    fourteen    (14)    north,    range    eleven    (11),    east,    in 

County,   Oklahoma;   that    the   description   should   have 

been,  and  the  premises  intended  to  be  conveyed  by  said  mortgage 
were  the  south  half  of  the  northwest  quarter  and  the  north 
half  of  the  southwest  quarter  of  section  twenty-seven  (27), 
township  fourteen    (14)    north  and  range  eleven    (11)    east  in 

County,  Oklahoma;  that  said  erroneous  description  in 

writing  the  word  ' '  east ' '  instead  of  the  word  ' '  west ' '  was  made 
by  the  parties  to  said  instrument  by  mutual  mistake. 

That  said and  said ,  and  none  of  the  defendants 

herein  named  were,  or  are,  the  owners  of  that  portion  of  the 
tract  which  was  so  erroneously  described ;  that,  in  order  to  make 
said  instrument  convey  to  this  plaintiff  the  security  contemplated 
by  the  parties,  it  is  necessary  that  said  description  be  amended 


389 


CONVEYANCE    OF    REAL   ESTATE.  §  496 


by  inserting  the  word  "west"  instead  of  the  word  "east,"  as 
aforesaid,  thus  making  the  proper  description,  to-wit:  (Here 
insert  proper  description.) 

That  plaintiff  has  heretofore  paid  to  said  and  

the  consideration  set  forth  in  said  mortgage,  to-wit:  the  sum 
of  $ 


That  thereafter,  on  the day  of ,  19—,  this  plain- 
tiff, for  the  purpose  of  releasing  from  the  mortgage  above  set 
forth,  the  lands  so  erroneously  described,  executed  a  partial  re- 
lease of  mortgage,  and  caused  the  same  to  be  filed  for  record  on 

the  day  of  ,  19—,  in  the  office  of  the  register  of 

deeds  of  County,  Oklahoma,  said  partial  release  being 

recorded   in   the    records   of   said   county,   in   book  ,   at 

page 


That  through  an  error,  said  partial  release  of  mortgage  failed 
to  properly  describe  the  portion  desired  to  be  released,  but,  in 
truth  and  in  fact,  described  a  portion  of  the  tract  originally  in- 
tended to  be  included  in  said  mortgage,  to-wit:  (Here  describe 
it),  instead  of  the  lands  intended  to  be  released,  to-wit:  (Here 

describe  it.) 

That  said  release  was  executed  without  consideration  and  by 

mistake. 

Wherefore,  plaintiff  prays  judgment  that  said  mortgage  be 
reformed  as  aforesaid,  and  that  said  partial  release  of  mortgage 
be  canceled  and  held  for  naught,  and  for  such  other  and  further 
relief  as  may  be  equitable. 

> 

Attorney  for  Plaintiff. 

Sec.  496.  Decree  of  court  correcting  said  mortgage,  finding 
service  by  publication  and  appointment  of 
guardian  ad  litem  for  minor  defendants. 

In  the  District  Court  of County,  State  op 

Oklahoma. 

,  Plaintiff, 

vs.  No. . 

,  a  minor,  and ,  a  minor.  Defendants. 


§  496  MEEWINE  'S   TRIAL   OF   TITLE   TO   LAND.  390 

DECREE. 

This  cause  coming  on  for  hearing  on  this  the  day  of 

-,  19 — ,  the  same  being  a  regular  day  of  the  regular 


19 —  Term  of  said  court ;  and  it  appearing  to  the  court  that  on 

the   day   of  ,    19 — ,    plaintiff   filed   his    petition 

against  said  defendants;  that  thereafter,  plaintiff  filed  his  good 
and  sufficient  affidavit  for  publication  for  the  reason  that  said 
defendants,  and  all  of  them,  were  at  said  time  nonresidents  of 
the  State  of  Oklahoma,  showing  further  that  plaintiff  had  used 
due  diligence  in  trying  to  get  service  on  said  defendants,  and 
each  of  them,  in  said  State  of  Oklahoma;  and,  thereafter,  on 
said  affidavit,  summons  by  publication  was  issued  by  the  clerk 
of  this  court,  commanding  said  defendants,  and  each  of  them,  to 

answer  the  petition  of  plaintiff  on  or  before  the  day  of 

^  19 — ^  said  date  being  more  than  forty-two    (42)    days 

from  the  date  of  the  first  publication  of  said  summons,  and  that 
said  summons  further  contained  a  statement  notifying  the  defend- 
ants that  the  plaintiff'  demanded  a  decree  against  them,  reform- 
ing a  certain  mortgage,  executed  by and  his  wife, , 

now  deceased,  on  the  following  described  premises,  to-wit :  (Here 
describe  premises),  so  that  said  mortgage  will,  when  reformed, 
convey  to  the  plaintiff  the  security  contemplated  by  the  parties, 
making  the  proper  description  the  following,  to-wit:  (Here  de- 
scribe it),  and  for  a  decree  further  canceling  a  certain  release 
of  mortgage  on  the  following  described  premises,  to-wit:  (Here 
describe  same),  said  description  having  been  erroneously  given, 
it  being  intended  to  describe  (Here  describe  premises),  and  said 
decree  so  demanded  being  to  correct  said  misdescription,  and, 
it  further  appearing  that  said  summons  by  publication  was  pub- 
lished for successive  weeks  in ,  being  a  newspaper 

printed   and   published    and   in   general   circulation   in  

County,  State  of  Oklahoma,  for  more  than  one  year  prior  to  the 
first  publication  of  said  summons,   and   said  summons  having 

been  properly  proved  by  the  affidavit  of  ,  of  said 

newspaper,  said  affidavit  having  been  introduced  in  evidence  in 
open  court ;  and,  it  appearing  to  the  court  thftt and 


391  CONVEYANCE    OF    REAL   ESTATE.  §  496 

are  persons  of  full  age,  and  that  said  persons  entered  their 
appearance    in    said    cause,    by    appearing    by    their    attorney, 

,  at  this  hearing;  and,  it  appearing  further  that  all  said 

other  defendants  were  properly  summoned  by  publication,  and 
that  this  cause  is  one  in  which  summons  by  publication  is 
proper;  and,  it  appearing  that,  after  the  return  date  of  said 

summons,  said  was,  upon  proper  motion,  appointed  by 

this  court,  guardian  ad  litem  for  said  minor  defendants;  that 

he,  as  such  guardian  ad  litem,  did,  on  the day  of , 

19 — ,  file  an  answer  for  said  minor  defendants,  denying  all  the 

material  allegations  of  the  petition,  said  ,  guardian  ad 

litem,  being  an  attorney  of  this  court  and  appearing  at  this 
hearing  in  propria  persona,  and  the  court,  having  heard  the 
testimony  and  being  fully  advised  in  the  premises,  doth  find 
that  all  of  the  allegations  of  the  petition  are  true ;  that  plaintiff 
is  entitled  to  the  relief  therein  demanded. 

Now,  Therefore,  it  is  considered,  ordered  and  adjudged  that 

a  certain  conveyance  executed  on   the  day  of  , 

19 — ,  being  in  words  and  figures  as  follows,  to-wit:  (Here  make 
copy  of  the  same)  contains  an  erroneous  description  in  that  the 
land  described  in  said  mortgage  as  (Here  describe  it)  were  not 
the  lands  intended  to  be  conveyed  by  said  mortgage ;  that  said  de- 
scription should  have  been  (Here  describe  the  same),  and  said 
instrument  is  hereby  reformed  so  that  the  lands  conveyed 
thereby,  and  the  only  lands  conveyed  thereby,  are  (Here 
describe  same).  And  it  appearing  further  that  there- 
after, on  the  day  of  ,  19 — ,  plaintiff  exe- 
cuted a  partial  release  of  said  mortgage  to  said  defendants,  said 
partial  release  appearing  in  the  records  of  the  register  of  deeds 

of  County,  Oklahoma,  in  book ,  at  page  ; 

that  said  release  described  the  following  lands,  to-wit:  (Here 
describe  same),  which  said  premises  were  not  intended  to  be 
released  by  the  plaintiff,  and  were  not  intended  by  either  party 
thereto  to  be  included  in  said  release,  and  that  said  description 
is  an  error  of  both  parties;  and,  it  appearing  further  that  the 
lands  intended  to  be  included  in  said  release,  and  to  be  released 
from  said  mortgage,  are  (Here  describe  same). 


§  497  merwine's  trial  of  title  to  land.  392 

Now,  Therefore,  it  is  considered,  ordered  and  adjudged  that 
said  release  be  reformed  so  that  the  lands  erroneously  described 
and  released  and  the  description  thereof,  shall  be  and  read  as 
follows,  to-wit:  (Here  specifically  describe  same),  and  that  said 
release,  so  far  as  it  affects  (Here  describe  lands),  is  hereby  can- 
celed and  held  for  naught. 

Done  in  open  court  this day  of ,  19 — . 


Judge  of  the  District  Court  in  and  for  said  County  and  State. 

Sec.  497.    Procedure  by  which  a  deed  is  reformed — Form  for 
petition. 

In  the  District  Court  of  County,  State  of 

Oklahoma. 

,  Plaintiff, 

vs.  No. . 

and ,  Defendants. 

PETITION. 

Now  comes  the  plaintiff  in  the  above  entitled  cause,  and,  for 
her  cause  of  action  against  the  defendants  herein,  alleges  and 
says: 

Plaintiff  is  the  equitable  owner  and  in  the  peaceable  possession 

of  the  following  described  real  estate,  situated  in County, 

State  of  Oklahoma,  to-wit:  (Here  describe  real  estate),  and  is 
entitled  to  an  absolute  fee  simple  title  to  said  lots  and  tracts  of 
land. 

That  plaintiff  derived  her  title  to  said  lots  and  tracts  of  land 

by  mesne  conveyances  from  one  ,  one  of  the  defendants 

herein,  in  the  following  manner,  to-wit: 

On  the  day  of  ,  19—,  the  defendant,  , 

and  the  defendant,  ,  wife  of  the  said  ,  agreed  to, 

and  did  sell  to  the  defendants, and ,  for  a  valuable 

consideration,  all  their  right,  title,  interest  and  estate,  both  legal 
and  equitable,  in  and  to  said  lots  and  tracts  of  land,  and  did,  at 


393 


CONVEYANCE    OF    REAL   ESTATE.  §  ^9 ' 

the  same  time  and  place,  agree  with  the  said and 

to  execute  and  deliver  to  them,  the  said  and        -—,  a 

warranty  deed,  in  writing,  to  said  lots  and  tracts  of  land,  and 

the  said  and  ,  his  wife,   at  the  same  time  and 

place,  did  execute,  acknowledge  and  deliver  to  the  said  — — 

and a  warranty  deed,  in  writing,  which  was  intended  by 

all  of  said  parties  thereto  to  be  an  absolute  warranty  deed  from 

the  said  and  ,  his  mfe,  to  the  said  and 

to  said  lots  and  tracts  of  land,  a  copy  of  which  warranty 

deed  is' hereto  attached,  marked  "Exhibit  A"  and  made  a  part 

of  this  petition.  i?  i,    i^  

That  said  deed  is  recorded  on  page  ,  of  book  » 

of  warranty  deed  records  in  the  office  of  the  register  of  deeds 

of County,  Oklahoma. 

Plaintiff  says  that,  by  inadvertence  and  mutual  mistake  ot 
all  the  parties  to  said  deed,  the  lots  and  tracts  of  land  intended 
by  said  parties  to  be  conveyed  by  said  deed,  were  mistakenly 
described  in  said  deed  as  (Here  describe  the  same)  ;  whereas 
it  was  the  true  intent  of  the  said  parties,  to-wit,  of  the  said 

. and and and ,  that  the  description 

of  said  land  so  intended  to  be  conveyed  by  said  deed  from  the 

said and ,  his  wife,  to  the  said and  , 

should  read  as  follows:  (Here  give  description.) 

That  thereafter,  to-wit,  on  the  day  of  ,  19     , 

the  defendant, ,  he  being  then  one  of  the  owners  m  com- 
mon of  said  tracts  of  land,  agreed  to  sell  and  did  sell  to  one 

for  a  valuable  consideration,  all  his  right,  title,  interest 

and  esiate,  both  legal  and  equitable,  in  and  to  said  lots  and 
tracts  of  land,  and  did,  at  the  same  time  and  place,  agree  with 

the  said  to  make,  execute  and  deliver  to  him,  the  said 

a  warranty  deed,  in  writing,  to  said  lots  and  tracts  of 

land,  a^d  the  said ,  at  the  same  time  and  place,  did  make, 

execute,  acknowledge  and  deliver  to  the  said  -,  his  war- 
ranty deed,  in  writing,  which  was  intended  by  both  of  said 
parties  to  be  an  absolute  warranty  deed  from  the  ^aid  -— 

to  the  said to  said  lots  and  tracts  of  land,  a  copy  of  which 

deed  is  hereto  attached,  marked  "Exhibit  B"  and  made  a  part 


§  497  MER wine's  trial  of  title  to  land.  394 

of  this  petition;  that  said  deed  is  recorded  on  page  of 

l)Ook of  warranty  deed  records  in  the  office  of  the  register 

of  deeds  of County,  Oklahoma. 

Plaintiff  says  that,  by  inadvertence  and  mutual  mistake  of 
both  of  said  parties  to  said  deed,  the  lots  and  tracts  of  land 
intended  by  said  parties  to  said  deed  to  be  conveyed  by  said 
deed,  were  mistakenly  described  in  said  deed  as  (Here  describe 
the  same)  ;  whereas,  it  was  the  true  intent  of  said  parties  to 
said  deed,  to-wit :  the  said and ,  that  the  descrip- 
tion of  the  said  lots  and  tracts  of  land  so  intended  to  be  con- 
veyed by  said  deed  from  the  said  to  the  said  • 

should  read  as  follows:  (Here  give  description.) 

That  thereafter,  to-wit:  on  the  day  of  ,  19 — , 

the  defendant, ,  who  was  then  the  owner  in  common  with 

the  defendant,  her  husband,  of  said  lots  and  tracts  of 

land,  agreed  to  and  did  sell  to  one  ,  he,  the  said  , 

being  the  same  to  whom  the  defendant,  ,  had,  on 

the day  of ,  19 — ,  sold  his  interest  in  said  lots  and 

tracts  of  land,  all  her  right,  title,  interest  and  estate,  both  legal 
and  equitable,  in  and  to  said  lots  and  tracts  of  land,  and  the 

said did,  at  the  same  time  and  place,  agree  with  the  said 

to  make,  execute  and  deliver  to  him,  the  said  ,  a 

quitclaim  deed,  in  writing,  to  all  her  right,  title  and  interest  in 

and  to  said  lots  and  tracts  of  land,  and  the  said did,  at 

the  same  time  and  place,  make,  execute,  acknowledge  and  de- 
liver to  the  said a  quitclaim  deed,  in  writing,  which  was 

intended  by  both  of  said  parties  to  be  a  quitclaim  deed  from  the 

said  to  the  said  to  said  lots  and  tracts  of  land, 

a   copy   of   which   quitclaim   deed   is   hereto   attached,   marked 
"Exhibit  C,"  and  made  a  part  of  this  petition;  that  said  deed 

is  recorded  on  page  of  book  of  quitclaim  deed 

records  in  the  office  of  the  register  of  deeds  of  County, 

Oklahoma. 

Plaintiff  says  that,  by  inadvertence  and  mutual  mistake  of 
both  parties  to  said  deed,  the  lots  and  tracts  of  land  intended 
by  both  parties  to  said  deed  to  be  conveyed  by  said  deed,  were 
mistakenly  described  as    (Here   give  description),   whereas,  it 


395  CONVEYANCE    OF    REAL    ESTATE.  §  497 

was  the  true  intent  of  said  parties  that  the  description  of  said 
lots  and  tracts  of  land  should  be  as  follows:  (Here  insert  de- 
scription.) 

Plaintiff  further  alleges  and  says  that  thereafter,  to-wit :  on 

the day  of ,  19—,  the  said ,  by  his  general 

warranty  deed  of  that  date,  granted,  bargained,  sold  and  con- 
veyed to  plaintiff  the  said  real  estate  (Here  describe  real  estate), 
and  that  a  copy  of  said  deed  is  hereto  attached,  filed  herewith, 
marked  ''Exhibit  D,"  and  made  a  part  of  this  petition. 

Plaintiff  says  that,  by  reason  of  the  mutual  mistakes  herein- 
before complained  of  in  the  deeds  referred  to,  copies  of  which 
are  attached  to  this  petition,  and  marked  respectively  Exhibits 
"A,  B  and  C,"  the  naked  legal  title  to  said  lots  and  tracts  of 

land  remains  in  the  defendant, ,  but  that  the  said 

has  no  equitable  right  or  interest  in  or  to  said  land ;  that  at  the 
time  plaintiff  purchased  said  land  from  the  said ,  as  here- 
inbefore  alleged,  to-wit:  on  the  day  of  ,   19 — , 

plaintiff  was  entirely  ignorant  of  the  said  defects  in  the  title  to 
said  lots  and  tracts  of  land,  and  that  she  did  not  discover  said 
defects  in  said  title  for  a  long  time  after  said  date;  that  the 
said  mistakes  in  said  deeds  were  made  without  any  fault  on  the 
part  of  this  plaintiff  and  were  entirely  the  results  of  inadver- 
tence and  mutual  mistake  and  misunderstanding  on  the  part  of 
the  respective  parties  to  said  deeds  at  the  times  when  said  deeds 
were  respectively  executed;  that  plaintiff  has  no  full  and  com- 
plete and  adequate  remedy  at  law. 

Wherefore,  plaintiff  prays  the  court  that  the  deed  hereinbe- 
fore referred  to  as  being  executed  and  delivered  by  the  defend- 
ants,   and ,  to  the  defendants, and  , 

on  the  day  of  ,  19 — ,  and  which  is  recorded  on 

page  of  book  of  warranty  deed  records  in  the 

office  of  the  register  of  deeds  of  County,  Oklahoma,  and 

a  copy  of  which  is  attached  to  this  petition,  marked  "Exhibit 
A,"  be  reformed  and  rectified  and  that  the  words  and  figures 
(Here  give  correct  description)  be  inserted  in  said  deed  in  lieu 
of  said  erroneous  words  and  figures  (Here  give  them)  ;  that  the 
deed  hereinbefore  referred  to  as  having  been  executed  ."r  1  d?- 


§  498  MEBWINE  'S    TRIAL    OF   TITLE   TO   LAND.  396 

livered  by  the  said to  the  said ,  on  the day 

of ,  19 — ,  and  which  is  recorded  on  page  of  book 

of  warranty  deed  records  in  the  office  of  the  register  of 

deeds  of  County,  Oklahoma,  and  a  copy  of  which  is  at- 
tached, to  this  petition  and  marked  "Exhibit  B,"  be  reformed 
and  rectified,  and  that  the  words  and  figures  (Here  set  them 
out)  be  inserted  in  said  deed  in  lieu  of  the  erroneous  words  and 
figures  (Describe  them)  ;  that  the. deed  hereinbefore  referred  to 

as  having  been  executed  and  delivered  by  the  said to  the 

said ,  on  the  day  of  ,  19—,  and  which  is 

recorded  on  page  of  book  of  quitclaim  deed  rec- 
ords in  the  office  of  the  register  of  deeds  of  County, 

Oklahoma,  and  a  copy  of  which  is  attached  to  this  petition  and 
marked  "Exhibit  C,"  be  reformed  and  rectified,  and  that  the 
words  and  figures  (Here  set  them  out)  be  inserted  therein  in 
lieu  of  the  erroneous  words  and  figures  (Here  describe  them)  ; 
and  that  the  court  adjudge  and  decree  the  plaintiff  to  have  an 
absolute  fee  simple  title  in  and  to  the  said  (Here  describe  real 

estate)    in  County,  Oklahoma,  and  for  such  other  and 

further  relief  as  may  to  the  court  seem  just  and  equitable.* 


Attorney  for  Plaintiff. 

Sec.  498.    Form  for  praecipe. 

PRAECIPE   FOR   SUMIMONS. 

In  tpie  District  Court  of  County,  State  of 

Oklahoma. 

,  Plaintiff, 

vs.  No. 


and ,  Defendants. 

To  the  Clerk  of  said  Court: 

Issue  summons  in  the  above  entitled  cause  and  direct  the  same 

to  the  sheriff  of County,  State  of  Oklahoma,  to  or  for  the 

defendants, , , and . 

Action  brought  for  reformation  of  deeds  and  to  declare  in- 
terest  of   plaintiff   in    (Here   describe   real   estate)    in   

County,  Oklahoma.  ^. 

'•'  Here  attach  exhibits. 


397  CONVEYANCE    OF    REAL    ESTATE.  §  499 

Make  summons  returnable  day  of ,  19 — . 

Defendants  required  to  answer  on  or  before  the day  of 

,  A.  D.  19—. 


Dated  this day  of ,  19- 


Attorney  for  Plaintiff. 

Sec.  499.     Form  for  summons. 

SUMMONS— UNITED  STATES  OF  AMERICA. 

In  the  District  Court  Avithin  and 

for   County,    State    of 

Oklahoma, Judicial  Dis- 
trict,    at     the     Courthouse    in 


State  of  Oklahoma, County,  ss. : 

The  State  of  OJdaJioma  to  the  Sheriff  of County  in  said 

State,  Greeting: 

You  are  hereby  commanded  to  notify  the  defendants,  , 

• ,  and  ,  that  they  have  been  sued  by  the 


plaintiff,  ,  in  the  district  court,  sitting  in  and  for  said 

county  of ,  and  that  unless answer  by  the 

day  of ,  19 — ,  the  petition  of  the  said  plaintiff,  , 

against  said  defendants,  filed  in  the  clerk's  office  of  said  court, 
such  petition  will  be  taken  as  true  and  judgment  rendered  ac- 
cordingly. 

You  will  make  due  return  of  this  summons  on  the day 

of ,  19—. 

Witness  my  hand  and  seal  of  said  court  affixed  at  my  office 

in  ,  County,  State  of  Oklahoma,  this  day 

of  ,  A.  D.  19—. , 

[Seal.]  Clerk  of  the  District  Court. 

By , 

Deputy. 

Suit  brought  for  reformation  of  deeds  to  decree  title  to  land. 


Clerk  of  District  Court. 


§  500  merwine's  trial  of  title  to  land.  398 

State  of  Oklahoma, County,  ss. : 

Eeceived  this  writ  on  the day  of ,  19 — ,  and,  as 

commanded  therein,  I  summoned  the  following  persons  of  the 
defendants  within  named  at  the  times  following,  to-wit: 

The  following  persons  of  the  defendants  within  named  not 
found  in  said  county : 

, , and . 


Sheriff. 

By , 

Deputy. 

Sec.  500.    Form  for  afTidavit  for  service  by  publication. 

In  the  District  Court  of  County,  State  op 

Oklahoma. 

Plaintiff, 

vs.  No. . 

and ,  Defendants. 

AFFIDAVIT   FOR   PUBLICATION. 

,  of  lawful  age,  being  first  duly  sworn,  on  his  oath,  says 

that  he  is  one  of  the  attorneys  for  the  plaintiff  in  the  above 

entitled  cause ;  that  the  defendants  in  said  cause,  the  said , 

and  ,  are  nonresidents  of  the  State  of 


Oklahoma;  that  summons  has  been  issued  for  defendants  in 
this  county,  and  as  to  them  returned  not  found;  that  inquiry 
has  been  made  for  their  place  of  residence,  and  the  same  cannot 
be  found  (or  such  other  acts  as  showdng  diligence)  ;  that  they 
are  not  now  in  the  State  of  Oklahoma,  and  that  with  due  dili- 
gence on  the  part  of  the  plaintiff  in  said  action,  she  is  unable 
to  make  service  of  summons  in  said  cause  of  action  on  any  of 
the  said  defendants  therein  in  the  State  of  Oklahoma,  and  that 
said  action  is  one  brought  for  the  determination  of  the  interest 

of  the  said  plaintiff  in  certain  real  estate  in  County, 

State  of  Oklahoma,  set  out  and  described  in  her  petition,  and  for 
a  decree  of  the  court  declaring  plaintiff  to  be  the  owner  in  fee 
simple  of  said  real  estate,  and  for  the  reformation  of  certain 
general  conveyances  thereof 


399  CONVEYANCE    OF    REAL    ESTATE.  §  501 

Wherefore,  plaintiff  asks  that  notice  of  said  action  be  served 
on  all  of  said  defendants  therein  by  publication. 


Subscribed  and  sworn  to  before  me  this day  of 

19—. ' 

rgg^L  -j  Clerk  of  the  District  Court. 

Sec.  501.    Form  for  the  notice. 

In  the  District  Court  of  County,  State  of 

Oklahoma. 

,  Plaintiff, 

No. 

vs. 

and ,  Defendants. 


PUBLICATION  NOTICE. 

The  said  defendants, , ,  ^^^  7'  ^^ 

take  notice  that  the  plaintiff, ,  did,  on  the day  ot 

19_  file  her  petition  in  the  district  court  of  the  county 

of  L_     State   of   Oklahoma,   against   said    defendants,    the 

object  and  prayer  of  which  petition  is  the   reformation  of  a 
certain  warranty  deed  to  (Here  describe  real  estate)  in  ■ 

County,    Oklahoma,    executed   on   the   day   ot    , 

19_  by  defendants, and ,  to  and  , 

for  the  reformation  of  a  certain  warranty  deed  to  said  tract  of 

land,  executed  by  the  defendant, ,  to  one  ,  on  the 

^^y  of  ^  19—;  for  the  reformation  of  a  certain 

quitclaim  deed  to  said'tract  of  land  executed  by  the  defendant, 

,  to  the  said ,  on  the  day  of  ,  19-, 

and  for  a  judgment  of  said  court  decreeing  the  plaintiff,  , 

to  be  the  absolute  owner,  in  fee  simple,  of  the  title  to  said  tracts 
of  land,  and  that  the  said  defendants  must  answer  the  petition 

tiled  therein  on  or  before  the day  of 19-,  or  the 

allegations  therein  contained  will  be  taken  as  true  and  judgment 
rendered  in  said  action  against  said  defendants,  so  reforming  each 


§§  502,  503  merwine's  trial  of  title  to  land,  400 

of  said  deeds  as  to  properly  describe  said  land  as  (Here  insert 
description),  and  decreeing  the  absolute  title  in  fee  simple  in 
said  lands  to  be  in  the  plaintiff,  . 

Witness  my  hand  and  the  seal  of  said  court  this day 

of ,  19—. , 

[Seal.]  Clerk  of  said  Court. 

Sec.  502.    Form  for  proof  of  publication. 

State  of  Oklahoma, County,  ss. : 

,  of  lawful  age,  being  first  duly  sworn,  says  that  he  is 

the of ,  a  weekly  newspaper  published  and  printed 

in , County,  Oklahoma,  and  of  general  circulation 

in  said  county  and  State ;  that  the  said  has  been  pub- 
lished for  more  than  fifty-two  consecutive  wrecks  next  prior  to 
the  dates  on  which  the  notice  herein  referred  to  was  published, 
and  a  notice,  of  which  a  true  copy  is  hereto  attached,  was  pub- 
lished in  a  regular  and  entire  edition  of  said ,  and  not  in 

a  supplement  thereof,  for  weeks,  the  first  publication 

being  on  the  day  of  ,  19—,  and  the  last  on  the 

day  of ,  19—. 


Sworn  to  before  me  and  subscribed  in  my  presence  this 
day  of ,  19—. 


[Seal.]  Notary  Public. 

My  commission  expires . 

Sec.  503.    Form  for  decree  reforming  deeds. 

In  the  District  Court  op  County,  State  op 

Oklahoma. 
,  Plaintiff, 


vs. 
and ,  Defendants. 


No. 


DECREE. 


Now,  on  this day  of ,  19—,  the  same  being  one 

of  the  regular  judicial  days  of  the  19—  Term  of  the 

district  court  of County,  State  of  Oklahoma,  this  cause 


401  CONVEYANCE    OF    REAL    ESTATE.  §  503 

comes  on  for  hearing  on  plaintiff's  petition,  the  defendants,  and 
each  of  them,  being  in  default  for  answer,  demurrer  or  other 
plea,  and  upon  the  evidence ;  and  the  court,  being  fully  advised 
in  the  premises,  each  of  said  defendants  being  first  called  three 
times  in  open  court,  finds : 

First.  That  the  defendants  herein,  and  each  of  them,  to-wit : 
the  said  ,  ,  and  ,  were,  at  the  com- 
mencement of  this  action,  and  now  are,  nonresidents  of  the 
State  of  Oklahoma,  and  were  duly  and  legally  served  with  notice 

of  this  action  by  notice  by  publication,  published  in  the  

for  consecutive  weeks  after  the  commencement  of  this 

action,  and  before  the  date  hereof,  the  said being,  at  the 

time  of  said  publication,  a  weekly  newspaper  printed,  published 

and  of  general  circulation  in  the  county  of and  State  of 

Oklahoma,  at  the  time  of  said  publication  and  for  more  than 
fifty-two  consecutive  weeks  prior  to  the  date  of  the  first  publi- 
cation thereof,  and  that  the  first  publication  of  said  notice  was 
made  more  than days  prior  to  the  date  hereof. 

Second.  That  the  allegations  contained  in  plaintiff's  petition 
herein  are  true,  and  that,  by  inadvertence  and  mutual  mistake 
of  all  parties  concerned,  the  certain  warranty  deed,  made,  exe- 
cuted and  delivered  on  the day  of ,  19 — ,  by  the 

defendants,   and  ,   his   wife,  to   the   defendants, 

and  ,  to  land  therein  described  as  (Here  set  out 

description  in  deed),  in  County,  Oklahoma,  incorrectly 

described  the  land  sought  to  be  conveyed  thereby,  and  that  it  was 
the  true  intent  of  said  parties  to  said  warranty  deed  to  therein 
describe  the  land  then  and  there  sought  to  be  conveyed  by  the 

said and to  the  said and ,  as  (Here 

describe  it),  in  County,  Oklahoma;  that,  by  inadver- 
tence and  mutual  mistake  of  all  parties  concerned,  the  certain 
w^arranty  deed,  made,  executed  and  delivered  by  the  defendant, 

,  to  one  ,  on  the  day  of  ,  19 — ,  to 

land  therein  described  as   (Here  insert  description  as  given  in 

deed),  in  County,  Oklahoma,  incorrectly  described  the 

land  sought  to  be  conveyed  thereby,  and  that  it  Avas  the  true 
intent  of  said  parties  to  said  warranty  deed  to  therein  describe 


§  503  merwine's  trial  of  title  to  land.  402 

the  land  then  and  there  and  thereby  sought  to  be  conveyed  by 

the  said  to  the  said  ,  as   (Here  describe  it),  in 

County,  Oklahoma ;  that,  by  inadvertence  and  mistake  of 

all  parties  concerned,  the  certain  quitclaim  deed,  made,  executed 
and  delivered  on  the day  of ,  19—,  by  the  defend- 
ant,   ,  to  one ,  to  land  therein  described  as  (Here 

insert  description  as  given  in  said  deed),  in County,  State 

of  Oklahoma,  incorrectly  described  the  land  sought  to  be  con- 
veyed thereby,  and  that  it  was  the  true  intent  of  the  said  parties 
to  the  said  quitclaim  deed,  to  therein  describe  the  land  then  and 

there  and  thereby  sought  to  be  conveyed  by  the  said  to 

the  said ,  as  (Here  describe  it),  in  County,  Okla- 
homa ;  and  that  on  the day  of ,  19—,  by  his  gen- 
eral warranty  deed  of  that  date,  the  said ,  for  a  valuable 

consideration,    granted,   bargained,    sold    and   conveyed   to   the 

plaintiff  herein,   the  said  ,  the  said  real  estate,  to-wit: 

(Here  describe  it),  and  that  the  said  plaintiff  is  now  the  equi- 
table owner  of  and  in  the  actual  peaceable  possession  of  said 
tract  of  land. 

Wherefore,  it  is  considered,  ordered,  adjudged  and  decreed 

by  the  court,  that  the  warranty  deed  bearing  date  of  , 

19_^  to  the  land  described  therein  as  (Here  insert  description 

of  land  as  given  in  said  deed),  and  executed  by  and 

to  and ,  and  recorded  on  page  of 

hook of  warranty  deed  records  in  the  office  of  the  register 

of   deeds   of  County,   Oklahoma,   be,   and  the  same  is, 

hereby  reformed  sjid  rectified,  and  that  the  words  and  figures 
(Here  give  correct  description)  be  inserted  in  said  deed  in  lieu 
of  the  erroneous  words  and  figures  (Here  set  them  out)  ;  that 

the  warranty  deed  bearing  date  of  the  day  of  , 

19_^  to  the  land  described  therein  as   (Here  describe  it),  and 

executed  by to  one ,  and  recorded  on  page 

of  book of  warranty  deed  records  in  the  office  of  the  regis- 
ter of  deeds  of County,  Oklahoma,  be,  and  the  same  is, 

hereby  reformed  and  rectified,  and  that  the  words  and  figures 
(Here  set  them  out)  be  inserted  in  said  deed  in  lieu  of  the 
erroneous  words  and  figures  (Here  set  them  out)  ;  that  the  quit- 


403  CONVEYANCE    OF    REAL    ESTATE.  §  503 

claim  deed  bearing  date  of  the  day  of ,  19 — ,  to 

the  land  described  therein  as  (Ilere  set  out  description  as  given 
in  said  deed),  and  executed  by  to  one  ,  and  re- 
corded on  page of  book of  quitclaim  deed  records 

in  the  office  of  the  register  of  deeds  of County,  Oklahoma, 

be,  and  the  same  is,  hereby  reformed  and  rectified,  and  that  the 
words  and  figures  (Here  set  them  out)  be  inserted  therein  in  lieu 
of  the  erroneous  words  and  figures  (Here  insert  them),  and  that 

plaintiff  herein,  the  said  ,  be,  and  she  is,  hereby  decreed 

to  be  the  absolute  owner  of,  and  to  have  an  absolute  fee  simple 
title  in  and  to  the  said  real  estate,  to-wit:  (Here  describe  it), 
in County,  in  the  State  of  Oklahoma. 


Judge  of  said  Court. 


§504 


MERWINE  S   TRIAL   OF   TITLE   TO   LAND. 


404 


CONVEYANCES  IN  FRAUD   OF   CREDITORS- 
LAW  AND  PROCEDURE. 


-THE 


SECTION 

504.  Fraudulent       conveyance — Tlie 

statute. 

505.  Debtor  may  prefer  creditors. 
500.  The  preference  by  mortgage. 

507.  The    preference    may    be    given 

under    a    general    assignment 
for    the    benefit    of    creditors. 

508.  Exceptions  as  to  exempt  prop- 

erty. 

509.  The     fraud     may    be     avoided, 

wlien. 

510.  Question    of    fraudulent    intent 

one   of   fact — Exceptions. 

511.  Fraudulent  debt  due  when  lia- 

bility occurred. 


SECTION 

512.  The  procedure  by  which  a  con- 

veyance in  fraud  of  creditors 
is  set  aside — The  petition — 
Ordinary  form. 

513.  Petition    of    judgment    creditor 

to  set  aside  fraudulent  mort- 
gage and  marshal  liens. 

514.  Petition  to  set  aside  fraudulent 

conveyance  for  sale  of  prem- 
ises. 

515.  Petition    to    set    aside    fraudu- 

lently confessed  judgment 
and  deed  made  thereunder. 

516.  Another    form    for    petition    to 

set  aside  fraudulent  deed. 


Sec.  504.    Fraudulent  conveyances — The  statute. 

Every  conveyance  of  real  estate,  or  any  interest  therein, 
and  every  mortgage  or  other  instrument  in  any  way  affecting 
tlie  same,  made  without  a  fair  and  valuable  consideration, 
or  made  in  bad  faith,  or  for  the  purpose  of  hindering,  delay- 
ing or  defrauding  creditors,  will  be  void  as  against  all  per- 
sons to  whom  the  maker  is  at  the  time  indebted,  or  under 
any  legal  liability.^ 

Every  transfer  of  property,  or  charge  thereon  made,  every 
obligation  incurred,  and  every  judicial  proceeding  taken, 
with  intent  to  delay  or  defraud  any  creditor,  or  other  person, 
of  his  demands,  is  void  against  all  creditors  of  the  debtor, 
and  their  successors  in  interest,  and  against  any  persons 
upon  whom  the  estate  of  the  debtor  devolves  in  trust  for 
the  benefit  of  others  than  the  debtor.^ 


1  Snyder,    1,213;    Wilson,    906. 

2  Snyder,  2,932;  Wilson,  2,774; 
Dakota  Code,  4,656;  California, 
3,439  (Kerr),  identical;  Judson  v 
Lyford,  84  Cal.  505.  24  Pac.  286; 
Mason    v.    Vestal,    88    Cal.    296,    26 


Pac.  213,  22  Am.  St.  Rep.  310; 
Swinford  v.  Rogers,  23  Cal.  233. 
Deed  void  in  the  hands  of  subse- 
quent purchaser  with  notice,  see 
Bull  V.  Ford,  66  Cal.  176,  4  Pac. 
1,175;    but 'see   Morrow   v.   Graves, 


405 


CONVEYANCE    OF    REAL    ESTATE. 


§505 


The  words,  "other  person,"  in  the  statute  has  been  con- 
strued to  include  a  wife  who  has  a  claim  for  alimony,  even 
though  she  may  not  in  law  be  called  a  creditor.^ 

Sec.  505.     Debtor  may  prefer  creditor. 

A  debtor  may  pay  one  creditor  in  preference  to  another,  or 
may  give  to  one  creditor  security  for  the  payment  of  his 
demand,  in  preference  to  another.* 

This  law  does  not  avail  where  the  debtor  is  thrown  into 
bankruptcy,  unless  the  period  has  passed  by  in  which  a  pref- 
erence is  allowed  in  such  proceeding. 

Much  that  is  embodied  in  the  statute  is  the  rule  of  the 
common  law.  Under  the  common  law,  it  has  always  been 
the  rule  that  a  conveyance  to  the  use  of  the  grantor,  or 
which  purports  upon  its  face  to  be  absolute,  when  there 
exists  a  secret  conveyance,  creating  a  trust  in  favor  of  the 
grantor,  or  by  which  a  benefit  is  reserved  to  him,  is  fraud- 
ulent in  law,  and  void  as  to  creditors  without  regard  to  the 


77  Cal.  218,  19  Pac.  489.  Valid  as 
between  grantor  and  grantee.  Law- 
ton  V.  Gordon,  34  Cal.  36,  91  Am. 
Dec.  670;  Frinck  v.  Roe,  70  Cal. 
296,  11  Pac.  820;  First  v.  Eastman, 
144  Cal.  487,  77  Pac.  1,043.  Full 
consideration  will  not  protect  grantee 
if  he  has  notice.  Fluegel  v.  Henschel, 
7  X.  D.  276,  74  X.  W.  996;  Sec. 
2,774  (Wilson,  1,903).  Can  havi 
no  application  where,  in  an  action 
originally  brought  by  one  partner 
against  the  other  to  dissolve  the 
copartnership,  and  secure  the  ap- 
pointment of  a  receiver,  with  the 
intent  to  delay  and  defraud  cred- 
itors, creditors  have  intervened,  se- 
cured the  removal  of  the  receiver, 
the  appointment  of  another,  and  an 
order  of  the  court  preserving  the 
assets  of  the  partnership  for  dis- 
tribution among  the  creditors,  and 
the  action  as  to  such  assets  has 
passed    wholly   beyond    the    control 


of   the    partners.      Foster    v.    Field, 
13  Okla.  230,  74  Pac.   190. 

3  Bennett  v.  Bennett,  15  Okla. 
286,  81  Pac.  632,  70  L.  R.  A.  864. 

4  Snyder,  2,930;  Wilson,  2,772; 
California,  3.432  (Kerr),  identical; 
Xorth  Dakota,  6,63o  (1905),  iden- 
tical; Paulson  V.  Ward,  4  X.  D. 
100,  58  X.  W.  792.  Debtor  to  in- 
clude corporation.  Merced  v.  Ivett, 
127  Cal.  134,  59  Pac.  393.  In  the 
absence  of  fraud,  creditor  may  be 
preferred  by  an  insolvent.  See  In 
re  Luce,  83  Cal.  303,  23  Pac.  350; 
Haas  V.  Whittier,  97  Cal.  411,  32 
Pac.  439;  In  re  Strock,  128  Cal. 
658,  61  Pac.  282;  Roberts  v.  Burr, 
135  Cal.  166,  67  Pac.  46;  Summer- 
ville  V.  Stockton,  142  Cal.  529,  76 
Pac.  243.  As  to  what  constitutes 
a  valid  preference,  see  Gardner  v. 
Haines,  19  S.  D.  514,  104  X.  W. 
244. 


§  506  merwine's  trial  of  title  to  land.  406 

intent  with  which  it  was  rnade.^  This  rule  of  the  common 
law  was  in  force  in  the  Territory  of  Oklahoma  as  a  part  of 
the  common  law,  and  it  is  provided  by  the  statute  of  this 
State,  that  the  common  law,  as  modified  by  the  constitutional 
and  statutory  law,  judicial  decisions,  and  the  conditions  and 
wants  of  the  people,  shall  remain  in  force  in  aid  of  the 
general  statute.*' 

In  the  making  of  a  preference  under  the  statute,  a  debtor 
will  not  be  allowed  in  any  way,  to  fasten  a  secret  trust  on 
the  property  so  given  as  a  preference,  or,  in  any  way,  derive 
any  advantage  therefrom,  if  the  grantee  knows  the  secret 
advantage,  or  has  knowledge  of  any  facts  calculated  to  put 
him  on  inquiry  as  to  them.  It  makes  no  difference  in  the 
legal  aspect  of  the  case  that  the  interest  reserved  was  not  of 
great  value.'' 

Sec.  506.     The  preference  by  mortgage. 

Any  person  in  this  State  indebted  to  other  persons,  has  a 
right  to  prefer  one  or  more  of  such  creditors  in  good  faith,  to 
secure  a  valid  debt,  which  preference  may  be  manifested  by 

sHopp,    etc.,    V.    Bain,    21     Okki.  334;    Ely    v.    McLaughlin,    78    Mo. 

177,   93   Pac.   765;    Lukins  v.   Aird,  App.    578;    Red    River    v.    Freman. 

6  Wall.  78,   18  L.  Ed.  750;   Robin-  1   K  D.   196,  46  X.  W.  36;   Newell 

son  V.  Elliott,  22  Wall.   (U.  S.)  527,  v.  Wagoner,   1   N.  D.   62,  42  N.  W. 

22  L.  Ed.  758.  104;    see,    also,    Ross    v.    Sedgwick, 

6  Snyder,  5,534;  Wilson,  4,200;  09  Cal.  247,  10  Pac.  400;  Swinford 
see,    also,    Snyder,   2.968.  v.  Rogers,  23  Cal.  233;   Pac.  ; 

7  Hopp  V.  Bain,  21  Okla.  177,  93  Woods  v.  Franks,  67  Cal.  42,  7  Pac. 
Pac.  705;  Lukins  v.  Aird,  6  Wall.  50;  Cooper  v.  Nolan,  138  Cal.  248, 
78,  18  L.  Ed.  750;  Robinson  v.  71  Pac.  179;  Judson  v.  Lyford,  84 
Elliott,  22  Wall.  (U.  S.)  527,  22  Cal.  505,  54  Pac.  285;  Tures  v. 
L.  Ed.  758;  Means  v.  Dowd,  128  Tures,  131  Cal.  625,  63  Pac.  1,008; 
U.  S.  273,  9  Sup.  Ct.  68,  32  L.  Ed.  Bull  v.  Bray,  89  Cal.  286,  26  Pac. 
429;  McDowell  v.  Steele,  87  Ala.  873,  13  L.  R.  A.  576;  Dalrymple  v. 
493,  6  So.  288;  Stephens  v.  Regen-  Security,  9  N.  D.  306,  83  N.  W. 
stein,  89  Ala.  561,  8  So.  68,  18  345;  Cerf  v.  Phillips,  73  Cal.  145, 
Am.     St.    Rep.    156;     McDonald    v.  16  Pac.  778. 

Hoover,     142    Mo.    484,    44    S.    W. 


407  CONVEYANCE    OF    REAL   ESTATE.  §  507 

mortgages  either  real  or  chattel,  or  by  the  transfer  of  per- 
sonal property  or  real  estate,  and  if  received  by  the  creditor 
in  good  faith,  such  conveyance  or  mortgage  will  be  valid  in 
the  hands  of  the  mortgagee,  and  constitute  a  preference  to 
the  extent  thereof,  subject  to  the  laws  relating  to  the  filing 
and  recording  of  mortgages.^ 


Sec.  507.    The  preference  may  be  given  under  a  general  as- 
signment for  the  benefit  of  creditors. 

Anyone  has  the  right,  under  the  general  assignment  laws 
of  this  State,  if  he  choose  so  to  do,  to  assign  all  his  property 
to  an  assignee,  for  the  benefit  of  his  creditors.  If  he  does 
so,  he  may  not  then  make  a  preference  to  one  or  more  of  his 
creditors.  The  property  of  a  general  assignment  must  be  for 
the  benefit  of  his  creditors.  The  right  of  an  insolvent  debtor 
to  pay  one  or  more  of  his  crediters  in  preference  to  others, 
and  the  right  to  make  a  general  assignment  for  the  benefit 
of  all  his  creditors,  ratably,  are  distinct  and  independent 
rights." 

If  the  instrument  by  which  the  general  assignment  is 
made,  is  made  upon  condition,  or  secret  trust  of  preference, 
the  assignment  is  invalid.^" 

The  language  of  the  statute  is  too  clear,  concise  and  un- 
mistakable to  require  any  technical  rule  of  construction,  and 
under  the  statute,  a  debtor  in  failing  or  insolvent  circum- 
stances, has  a  right  to  pay  one  creditor  in  preference  to 
another,  or  to  give  one  creditor  security  in  payment  of  his 
demand,  in  preference  to  another;  and  if  accepted  by  the 
creditor  in  good  faith  for  the  payment  or  securing  of  a 
subsisting,  honest  debt,  due  from  the  debtor  to  the  creditor, 


8  Act  of  March   8,   1895;    Wilson,  lo  Hockaday  v.  Drye,  7  Okla.  288, 
2,778.                                                                54  Pac.  475. 

9  Smith  V.  Baker,  .5  Okla.  326,  43 
Pac.   61. 


§  §  508,  509  MERWINE  'S   TRIAL   OP    TITLE   TO   LAND.  408 

it  will  be  sustained  although  it  has  the  effect  to  delay,  hinder 
or  defraud  other  honest  debts  of  the  debtor/^ 

Sec.  508.    Exceptions  as  to  exempt  property. 

The  same  rule  does  not  apply  as  to  the  disposal  of  exempt 
property  as  to  property  that  is  not  exempt.  Property  not 
exempt  is  always  subject  to  the  payment  of  debts,  and  any 
conveyance  thereof  is  subject  to  the  rights  of  creditors.  A 
husband  can  transfer  exempt  property  without  consideration, 
and  his  creditors  cannot  complain.^- 

This  has  been  the  theory  that  a  debtor  in  disposing  of  his 
property,  can  commit  fraud  upon  his  creditors  only  by  dis- 
posing of  such  of  his  property  as  the  creditor  has  a  legal 
right  to  look  to  for  his  pay,  and  that  a  creditor  of  a  husband 
cannot  inquire  into  the  good  faith  of  the  husband  in  deeding 
the  homestead  to  the  wife.^^ 

Sec.  509.     The  fraud  may  be  avoided,  when. 

A  creditor  may  avoid  the  act  or  obligation  of  his  debtor 
for  fraud,  only  where  the  fraud  obstructs  the  enforcement, 
by  legal  process,  of  his  right  to  take  the  property  affected 
by  the  transfer  or  obligation.^* 

11  Brittain  v.  Burnham,  7  Okla.  creditors,  and  no  one  can  complain 
522,  60  Pac.  241;  Cutler  v.  Pollock,  if  the  wife  of  an  insolvent  husband 
4  N.  D.  205,  59  N.  W.   1,062.  refuses  to  sign  a  deed  for  tlie  sale 

12  Kershaw  v.  Wiley,  22  Okla.  of  the  homestead  until  her  husband 
672;  98  Pac.  909;  Hixon  v.  George,  agrees  that  the  money  procured  as 
18   Kan.   253.  the   proceeds   of   such   sale   may   be 

13  Kershaw  v.  Wiley,  22  Okla.  transferred  to  her,  and  the  execution 
672,  98  Pac.  908;  Monwe  v.  May,  of  such  deed  by  her  is  ample  con- 
9  Kan.  466;  Mitchell  v.  Skinner,  sideration  to  support  the  trans- 
17  Kan.  563;  Sproul  v.  Atchinson.  action.  Kershaw  v.  Wiley,  22  Okla. 
22  Kan.  336;   Merchants  v.  Copplin,  672,  98   Pac.   909. 

1  Kan.  App.  599,  42  Pac.  263.     The  "Snyder,    2,934;    Wilson,    2,776; 

spirit   of   the    homestead   law   is   to  Dakota    Code,    4,658     (1887);    Cali- 

protect  the  wife  and  family  against  fornia,      3,441       (Kerr),     identical; 

the  improvidence  of  the  head  of  the  Brown    v.    Campbell,    100  Cal.    635, 

family    as    well    as    against   urgent  35  Pac.  433,  38  Am.  St.  Rep.  314. 


409  CONVEYANCE    OP    REAL   ESTATE.  §§510,511 

In  California  it  was  held  that  where  the  officers  and  stock- 
holders of  one  corporation  form  another,  and  convey  all  the 
property  of  the  former  to  it,  in  fraud  of  creditors,  the  latter 
corporation  will  be  regarded  as  a  continuation  of  the  former, 
and  a  court  of  equity  will  hold  the  assets  of  the  latter  liable 
for  the  debts  of  the  former,  though  there  has  been  recovery 
of  judgment  for  the  debt,  and  the  return  of  the  execution 
unsatisfied,  as  required  by  the  code  (Civil  Code,  3441),  which 
declares  that:  "A  creditor  can  avoid  the  act  or  obligation 
of  his  debtor  for  fraud  only  when  the  fraud  obstructs  the 
enforcement,  by  legal  process,  of  his  right  to  take  the  prop- 
erty affected  by  the  transfer  or  obligation. ' '  ^^ 

Sec.  510.     Question  of  fraudulent  intent  one  of  fact — Excep- 
tions. 

In  all  cases  arising  under  this  chapter,  except  as  other- 
wise provided  in  the  statute  (Snyder,  2933;  Wilson,  2775), 
the  question  of  fraudulent  intent  is  one  of  fact,  and  not  of 
law;  nor  can  any  transfer  or  charge  be  adjudged  fraudulent 
solely  on  the  ground  that  it  was  not  made  for  a  valuable 
consideration.^^ 


Sec.  511.     Fraudulent  debt  due  when  liability  occurred. 

In  all  cases  where  a  debtor  has  fraudulently  contracted  a 
debt,  or  fraudulently  incurred  a  liability  or  obligation,  for 
which  suit  is  about  to  be,  or  has  been  brought,  such  debt, 
liability  or  obligation  will  be  deemed  due  at  the  time  such 
liability  was  incurred.^'^ 


15  Blanc  V.  Paymaster,  95  Cal.  524,  i7  Act  of  March   8,   1895;   Wilson, 

30  Pac.  765.  2,778. 

10  Snyder,    2.935;    Wilson,    2,777; 
Dakota  Code,  4,059   (1887). 


§  512  merwine's  trial  of  title  to  Lu\nd.  410 

Sec.  512.  The  procedure  by  which  a  conveyance  in  fraud  of 
creditors  is  set  aside — The  petition — Ordinary 
form. 

District  Court  of  County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

and  ,  Defendants. 

PETITION. 

Comes  now  the  plaintiff,  and,  for  his  cause  of  action  herein, 
alleges  and  states : 

1.  That  at  the  Term  of  the  court  of  

County,  Oklahoma,  the  plaintiff  recovered  a  judgment  against 

the  defendant,  ,  for  the  sum  of  $ ,  with  interest 

thereon  from  the day  of ,  19 — ,  and  costs,  amount- 
ing to  $ ,  which  judgment  still  remains  in  full  force  and 

unsatisfied. 

2.  That  on  the  day  of  ,  19 — ,  plaintiff  caused 

an  execution  to  be  issued  out  of  said  court  against  the  property 

of  the  said  defendant,  ,  which  execution,  on  the  • 

day  of ,  19 — ,  was,  by  the  sheriff  of  said  county,  returned 

unsatisfied,  and  there  is  now  due  to  plaintiff,  on  said  judgment, 
the  sum  of  $ . 

3.  That  on  the  day  of  ,  19 — ,  said  defendant, 

,  conveyed  the  following  described  property  to  , 


defendant,  without  consideration,  and  with  intent  to  hinder,  de- 
lay and  defraud  his  creditors,  as  said  defendant,  ,  then 

well  knew,  to-wit:  (Here  specifically  describe  the  real  estate  con- 
veyed.) 

Wherefore,  plaintiff  prays  that  the  deed  of  conveyance  from 

the  said  to  may  be  declared  null  and  void,  and 

that  said  property  may  be  ordered  sold  as  required  by  law,  and 
the  proceeds  thereof  applied  to  the  payment  of  plaintiff's  judg- 
ment, and  for  such  other  relief  as  is  just  and  equitable.* 


Attorneys  for  Plaintiff. 
'Adopted   from  Whittaker's  Code  Forms.  » 


411  CONVEYANCE    OF    REAL   ESTATE.  §  513 

Sec.  513.     Petition  by  judgment  creditor  to  set  aside  fraud- 
ulent mortgage  and  marshal  liens. 

District  Court  of  County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No- 


and ,  Defendants. 


PETITION. 

Comes  now  the  plaintiff,  and,  for  his  cause  of  action  herein, 
alleges  and  states : 

1.  That  on  the  day  of  ,  19—,  at  the  • 

Term  of  the  court  of  County,  Oklahoma,  he  re- 
covered a  judgment  against  the  defendant,  ,  for  the  sum 

of  $ ,  debt,  and  $ ,  costs  of  suit,  with  interest  at  the 

rate  of  per  cent,  from  the  date  of  judgment,  according 

to  the  stipulations  of  a  certain  promissory  note,  upon  which  said 
action  was  brought,  which  said  judgment  is  in  full  force  and 
wholly  unpaid  and  unsatisfied,  and  which  said  judgment  is  a 
lien  upon  the  real  estate  hereinafter  described. 

2.  That  on  the day  of ,  19—,  the  said , 

being  then  seized  in  fee  simple  of  the  following  described  real 

estate,  in  County,  Oklahoma,  to-wit:    (Here  specifically 

describe  same),  conveyed  the  same  by  deed  of  mortgage  to  his 

creditor  and  codefendant,  ,  ostensibly  for  the  purpose  of 

securing  a  certain  promissory  note  of  that  date,  executed  and 

delivered  by  said  to  said  ,  or  order,  for  the  sum 

of  $ ,  due  years  after  date,  with  interest 

thereon  from  date  until  paid,  which  said  note  and  mortgage 

were,  in  truth,  executed  and  delivered  by  said  to  said 

,  witliout  any  consideration  therefor,  but  with  intent,  then 

and  there,  and  thereby,  to  cheat,  hinder,  delay  and  defraud  the 

creditors  of  the  said ,  and  especially  the  plaintiff, , 

who  was  at  the  time  a  creditor  of  the  said  defendant,  , 

who  then  owed  plaintiff  the  debt  for  which  said  judgment  was 
recovered,  all  of  which  facts  were  then  and  there  well  knowTi  to 
said at  the  time  of  his  taking  such  note  and  mortgage. 


§  513  merwine's  trial  of  title  to  land.  412 

3.    That  at  the  time  of  the  making  of  said  mortgage,  the  said 
was  in  failing  circumstances,  and  thereby  conveyed  and 


incumbered  the  real  estate  of  which  he  was  then  possessed,  with- 
out consideration  as  aforesaid,  with  intent  to  cover  the  same  up 
and  place  it  beyond  the  reach  of  his  creditors,  and  reserved  no 
estate  whatever,  out  of  which  plaintiff's  claim  could  be  made,  or 
can  be  made,  and  is  now  wholly  insolvent. 

4.     That  on  the  day  of  ,  19—,  and  while  the 

actions  were  pending  against  him  in  which  the  judgments  afore- 
said were  recovered,  he,  the  said ,  executed  and  delivered 

to  his  deed  of  assignment,  thereby  conveying  the  real 

estate  aforesaid,  being  all  the  real  estate  of  which  he  was  then 
possessed,  together  with  all  his  personal  estate  and  property, 

for  the  use  and  benefit  of  the  creditors  of  him,  the  said , 

which  said  deed  was  filed  for  record  according  to  law,  and  said 

duly  qualified  as  said  assignee,  and  has  been  acting  as 

such  ever  since;  that  plaintiff  called  upon  said  ,  as  such 

assignee,  and  requested  him  to  commence  an  action  in  this  court, 
for  the  purpose  of  setting  aside  the  fraudulent  mortgage  and 
conveyance,  and  ascertain  the  validity,  amounts  and  priorities 

of  the  claims  and  liens  of  the  creditors  of  said upon  said 

premises,  but  he  absolutely  refused  so  to  do,  and  still  refuses, 
and  will  not  give  his  consent  to  be  made  a  party  plaintiff  to  this 
action  for  that  purpose,  and  he  is,  for  that  reason,  made  a  party 
defendant  to  this  action. 

5.  That  said  ,  as  said  assignee,  on  the  — day  of 

^  19__^  filed  his  petition  in  the  proper  court  of  said  county 

of  ,  in  which  petition  he  asked  for  an  order  to  sell  the 

real  estate  described  in  the  petition  of  plaintiff  in  this  action, 

which  said  real  estate  had  come  to  him,  the  said  ,  under 

and  by  virtue  of  said  assignment,  for  the  purpose  of  being 
administered,  and  applied  to  the  payment  of  the  debts  of  said 
assignor,  and  that  plaintiff  asked  leave  to  be  made  a  party  de- 
fendant in  said  action,  with  leave  to  answer,  which  leave  was, 
by  said  court,  refused. 

6.  That  the  defendants,  and  ,  claim  some  in- 
terest and  lien  on  said  premises,  the  precise'  nature  of  which  is 


413  CONVEYANCE   OF    REAL   ESTATE.  §  514 

unknown  to  plaintiff,  and  he  asks  that  they  be  required  to 
answer  touching  the  premises,  and  to  specifically  set  forth  the 
nature  and  character  of  their  respective  liens  and  claims  upon 
said  premises. 

Wherefore,  plaintiff  praj^s  that  said  mortgage  deed  may  be 
declared  fraudulent  and  void,  to  all  intents  and  purposes;  that 
the  amounts  and  priorities  of  the  claims  and  liens  of  the  plaintiff 
and  the  several  defendants  may  be  found,  and  definitely  fixed 

and  declared  by  the  court,  and  that  the  defendant,  ,  as 

assignee,  may  be  enjoined  and  restrained  from  proceeding  to 
sell  said  real  estate,  upon  his  said  petition,  until  final  hearing 
in  this  action,  and  until  said  cloud  is  removed  from  said  title,  and 
for  such  other  relief  as  the  circumstances  and  nature  of  the  case 

may  require.*  , 

Attorneys  for  Plaintiff. 

*  Adapted    from   Kinkead's    Code  Pleading. 

Sec.  514.    Petition  to  set  aside  fraudulent  conveyance  for  sale 
of  premises. 

District  Court  of  County,  State  of  Oklahoma. 

and ,  Plaintiffs, 

vs.  No. . 

and ,  Defendants. 


PETITION. 

Come  now  the  plaintiffs,  and,  for  their  cause  of  action  herein, 
allege  and  state : 

1.     That  on  the  day  of ,  19 — ,  ,  

and recovered  a  judgment  in  the court  of 

County,  Oklahoma,  by  the  judgment  of  said  court,  at  its 

Term,  19 — ,  to-wit : ,  19 — ,  in  their  favor,  against , 


in  a  certain  action  therein  pending  against  him  and  others,  of 

which  he  had  due  notice,  for  the  sum  of  $ ,  and  $ 

costs,  which  judgment  remains  unpaid,  unreversed  and  in  full 

force,  and  that  said afterward  transferred  to  said , 

plaintiff,  his  interest  therein,  who  now  owns  the  same. 


§  514  merwine's  trial  of  title  to  land.  414 

2.  That  on  the  day  of  ,  19—,  the  plaintiffs 

caused  a  writ  of  execution  to  issue  out  of  said  court  of  

County,  Oklahoma,  by  its  clerk,  directed  to  the  sheriff  of  said 

county  of  ,  directing  him  to  levy  upon  and  sell  of  the 

property  of  said  ,  sufficient  to  pay  said  judgment  and 

costs,  upon  which  said  writ  the  sheriff  of  said  county  of  

made  his  lawful  levy  on  the  day  of  ,  19—,  upon 

the  interest  of  said ,  to-wit :   the  undivided of  the 

farm  of  said  ,  of  about  acres,  hereinafter 

described,  which  farm  descended  to  the  heirs  of  the  said , 

at  the  time  of  his  death,  about  ,  19—,  one  of  whom  was 

said . 

3.  That  soon  after  his  father's  death,  the  said ,  to-wit: 

on  the  day  of  ,   19 — ,  without  any  valuable  or 

sufficient  consideration,  and  for  the  purpose  of  placing  said  prop- 
erty beyond  the  reach  of  his  creditors,  and  hindering  and  delay- 
ing said   plaintiffs   in   the   collection    of   their   said   judgment, 

conveyed  said  land  to  his  brother-in-law,  ,  who,  by  deed 

on  the  same  day,  without  any  valuable  consideration,  and  for 

the  purpose  aforesaid,  conveyed  said  land  to ,  wife  of  said 

,  who,  as  plaintiffs  are  informed  and  believe,  and  from 

such  information  and  belief  aver  the  fact  to  be,  that  said 


now  holds  the  legal  title  thereof,  subject  to  the  rights  of  plain- 
tiffs therein. 

4.  That,  by  virtue  of  such  judgment  and  levy  on  the  prem- 
ises, the  plaintiffs  have  and  hold  a  lien  on  said  lands  for  the 
payment  of  said  judgment  and  costs,  and  have  a  right  in  equity, 
to  have  said  lands  sold  to  pay  the  same,  which  they  cannot,  by 
reason  of  said  conveyances,  made  for  the  purposes  aforesaid, 
now  obtain  by  sale  on  said  execution. 

5.  That  said  real  estate  is  described  as  follows,  to-wit:  (Here 

specifically  describe  the  same),  and  that  said has  not  any 

property  or  real  estate  unincumbered  and  liable  to  sale,  upon 
said  judgment,  and  was  insolvent  until  said  real  estate  descended 
to  him  on  the  death  of  his  father. 

Wherefore,  plaintiffs  pray  that  said  defendants  may  be  made 
parties  by  summons,  and  that  on  final  hearing  liereof  an  order 


415  CONVEYANCE  OP  REAL,  ESTATE.  §  515 

of  sale  be  granted  plaintiffs,  for  the  sale  of  said  real  estate,  if 
the  said  defendants  fail  for  such  time  as  the  court  may  order, 
to  pay  said  judgment,  costs  and  increased  costs,  and  that  such 
other  and  further  relief  be  granted  to  them  as  law  and  equity 

may  authorize.*  , 

Attorneys  for  Plaintiffs. 
*  Adapted    from   Kinkead's    Code   Pleading. 

Sec.  515.    Petition  to  set  aside  fraudulently  confessed  judg- 
ment and  deed  made  thereunder. 

District  Court  of  County,  State  of  Oklahoma. 

• ,  Plaintiff, 

vs.  No. . 

and ,  Defendants. 


PETITION. 

Comes  now  the  plaintiff,  and,  for  his  cause  of  action  herein, 
alleges  and  states : 

1.     That  at  the  Term  of  the  court  of  

County,  Oklahoma,  to-wit:  on  the  day  of  ,  19 — , 

he  recovered  a  judgment  against ,  for  the  sum  of  $ , 


which  judgment  still  remains  in  full  force  and  is  unsatisfied. 

2.  That  on  the  day   of  ,   19—,  the  plaintiff 

caused  an  execution  to  be  issued  out  of  said  court  against  the 

property  of  said ,  which  execution,  on  the  day  of 

,  19 — ,  was,  bj'-  the  sheriff  of  said  county,  returned  wholly 

unsatisfied,  and  there  is  now  due  plaintiff,  on  said  judgment,  the 

sum   of   $ ,   together  with  $ ,   costs,   and  increased 

costs. 

3.  That  the  said ,  from  the  date  of  the  conveyance  here- 
inafter mentioned,  continuously  until  the  present  time,  has  been 
and  now  is,  wholly  insolvent. 

4.  That  on  the day  of ,  19 — ,  before  the  entry 

of  plaintiff's  judgment,  but  after  the  indebtedness  upon  which 

it  was  rendered,  had  accrued,  said  defendant, ,  authorized 

and  directed  judgment  for  $ to  be  entered  against  him  by 

confession,  in  the court  of County,  Oklahoma,  in 


§  516  MEB wine's  trial  op  title  to  land.  416 

favor  of  ,  defendant,   on  a  pretended  indebtedness   for 

money  alleged  to  have  been  loaned  by to  . 

5.  That  on  the  day  of ,  19—,  executions  were 

duly  issued  out  of  said  court,   upon   said   judgments, 

which,  for  want  of  goods  and  chattels  of  said  ,  whereon 

to  levy,  were  duly  levied  on  the  following  described  real  estate 

belonging   to   said  ,    to-wit:    (Here   specifically   describe 

same),  and  that  said  premises  were  sold  in  said  proceeding  under 

said  levy,  to ,  for  the  sum  of  $ ,  and  that  the  amount 

thereof  was  credited  to  said  judgment. 

6.  That  said  judgments  were  fraudulently  confessed  by  said 

to  said ,  for  the  sole  purpose  on  the  part  of  both, 

to  incumber  the  property  of  said and  defraud  the  plain- 
tiffs, and  said  was  not  indebted  to  said  in  any 

sum  whatever,  at  the  time  of  the  confession  of  said  judgments, 
and  there  was  no  consideration  whatever  for  the  same. 

Wherefore,  plaintiff  prays  that  said  judgments  may  be  de- 
clared fraudulent  and  void  as  to  creditors;  that  said  lands  be 
subjected  to  the  payment  of  plaintiff's  judgment,  and  for  such 
other  relief  as  is  just  and  equitable.* 


Attorneys  for  Plaintiff. 
*  Adapted    from    Kinkead's    Code    Pleading. 

Sec.  516.    Another  form  for  petition  to  set  aside  fraudulent 
deed. 

District  Court  of  County,  State  of  Oklahoma. 

and , 

Copartners  under  the  Firm 

Name  of and  Company,  Plaintiffs, 

No. . 

and ,  Defendants. 

PETITION. 

Come  now  the  plaintiffs,  and,  for  their  cause  of  action  herein, 
allege  and  state: 

1.     That  they  are  copartners  in  the  business  of ,  in  the 

city  of ,  under  the  firm  name  and  style  of  and 


417  CONVEYANCE   OF   REAL   ESTATE.  §  516 

Company,  and  that  a  certain  was,  and  is  now,  engaged 

in  the business  in  said  city  of ,  and  that  said 

prior  hereto  has  become  largely  indebted  to  plaintiffs  for  goods 
sold  by  them  to  him. 

2.  That  said  indebtedness  being  long  overdue,  plaintiffs 
brought  suit  thereon  in  court  in  County,  Okla- 
homa, against  the  said  ,  on  the  day  of  , 

19 — ,  and  obtained  a  judgment  against  him  for  $ and 

costs,  on  the  day  of  ,  19 — ,  and  they  caused  an 

execution  under  said  judgment  to  be  issued  to  the  sheriff  of 

• County,  Oklahoma,  and  the  same  was  levied  upon  certain 

real  estate  in  the  county  of  ,   Oklahoma,  to-wit:    (Here 

specifically  describe  same),  then,  and  for  a  long  time  previously 
in  the  possession  of  said . 

3.  That  said  real  estate,  and  all  the  right,  title  and  interest 

of  said therein,  was,  on  the  day  of ,  19 — , 

sold  under  said  execution  to  satisfy  said  debt,  and  plaintiffs 
became  the  purchasers  thereof,  and  thereafter  received  from  the 
sheriff  of  said  county  of a  deed  therefor. 

4.  That  at  the  time  of  the  institution  of  plaintiffs'  suit,  and 
up  to  the  day  before  they  obtained  judgment  thereon,  the  said 

was  seized  and  possessed  in  fee  simple  of  said  real  estate, 

but  that  on  said  day,  before  plaintiffs  obtained  judgment,  to-wit : 

the day  of ,  19 — ,  the  said ,  for  a  pretended 

consideration  of  $ ,  conveyed  said  real  estate  by  deed,  of 

that  date,  to  a  certain . 

5.  That,  notwithstanding  the  said  conveyance  to  said , 

the  said has  ever  since,  and  still  continues  to  live  on  and 

occupy  the  real  estate  described  in  said  deed. 

6.  That  at  the  time  of  his  making  said  deed,  said was 

largely  indebted  and  insolvent,  and  had  no  means  of  paying  his 
said  debt,  or  any  part  thereof,  but  by  the  property  so  conveyed 
by  him,  and  since  said  conveyance  has  been  possessed  of  no  other 
property  whatever,  and  that  said  conveyance  was  fraudulently 
made  and  for  a  simulated  and  pretended  consideration,  and  was 


§  516  merwine's  trial  of  title  to  land.  418 

made  to  hinder,  delay  and  defraud  the  plaintiffs  and  his  other 
creditors  of  their  just  and  lawful  debts. 

Wherefore,   the   plaintiffs   pray   that    said   deed   from   said 

to  said ,  of  said  real  estate,  may  be  declared  to  be 

void  and  may  be  vacated  and  annulled,  and  that  plaintiffs  may 
have  such  other  and  further  relief  as  their  case  may  require.f 


Attorneys  for  Plaintiffs. 

t  Adapted    from    Kinkead's    Code    Pleading. 


CHAPTER   XII. 
DESCENT  AND  DISTRIBUTION. 

1.  Oklahoma  Statute. 

2.  Five  Civilized  Tribes. 

3.  Arkansas  Statute. 

4.  Dow^R  AND  Assignment  thereof  under  Arkansas  Stat- 

ute. 

5.  Law^  of  Wills. 

6.  Probate  of  Wills. 


1.    TITLE  BY  DESCENT— THE  OKLAHOMA  STATUTES. 


SECTION 

617.  General    discussion. 

518.  Dower    and    curtesy    abolished 

in  Oklahoma. 

519.  Discussion  of  terms — Statutory 

definition  of  succession. 

520.  Proper    persons   to   take   prop- 

erty of  a   deceased. 

521.  Wliat    property   passes    to   the 

heirs. 

522.  Inheritance      by       illegitimate 

child. 

523.  Inlieritance    from    an    illegiti- 

mate child. 

524.  Degrees  of  kindred,  how  estab- 

lished. 

525.  Lineal  and  collateral  descent. 

526.  Tlie    lines    ascending    and    de- 

scending. 

527.  The  degrees  in  the  direct  line. 

528.  The   degrees    of    the   collateral 

line. 

529.  Inheritance   by  kindred  of  the 

half-blood. 

530.  Advancement  of  child's  part. 

531.  Advancement — Excees    not    re- 

funded. 

532.  Advancement  defined. 


SECTION 

533.  Advancement — Expressed  value 

governs,   when. 

534.  Advancement — When     the     de- 

scendant    receiving     it     dies 
before  decedent. 

535.  Inheritance   by    representation. 

536.  Aliens   may   inherit. 

537.  An     estate     escheats,     when — 

Subject  to  what  charges. 

538.  Heirs  must  pay  obligations  of 

decedent. 

539.  The  order  of  succession — ^Wife 

and  children — ^Lineal  descend- 
ants. 

540.  Where    decedent    was    married 

more  than  once. 

541.  Where  decedent  leaves  no  sur- 

viving liusband  or  wife. 

542.  Where  decedent  leaves  no  issue. 

543.  Where    property    acquired     by 

joint  industry  of  husband  and 
wife. 

544.  Where    there    is    no    issue,    no 

husband,   no   wife,   no   father 
and  no  mother. 

545.  Where    there    is    no    issue,    no 

husband,  no  wife,  no  father, 
no  brother  and  no  sister. 


419 


§  517                      MERWINE  'S   TRIAL  OP   TITLE   TO   LAND.                          420 

SECTION  SECTION 

546.  Where   decedent   leaves    a   sur-  and  not  having  been  married, 

viving    husband   or    wife,    no  holding  an  estate  of   inherit- 

issue,   no    father,   no   mother,  ance. 

no  brother  and  no  sister.  549.  Where  decedent  dies  under  age, 

547.  Where  decedent  leaves  no  issue,  unmarried,  and  all  the  other 

no     husband,     no     wife,     no  children    of    his    parents    are 

fatlier,  no  mother,  no  brother,  dead,      and      any      of      them 

no  sister.  have  lawful  issue,  leaving  an 

548.  Where  the  decedent  leaves  sev-  estate  of  inheritance  from  his 

eral    children,    or    one    child  parents. 

and  the  issue  of  one  or  more  550.  The   estate  will   escheat,  when, 

children,    and    any    such    sur-  550a.  Change   in    Oklahoma    statute 

viving   child   dies   under   age  of  descents. 


Sec.  517.     General  discussion. 

The  subject  of  descent,  or,  as  it  is  more  commonly  called, 
descent  and  distribution,  is  one  of  the  intricate  topics  of  the 
law,  and,  in  this  State,  especially,  that  portion  of  the  law 
applicable  to  what  was  formerly  known  as  the  Indian  Ter- 
ritory, the  law  of  the  subject  is  doubly  difficult.  It  is  diffi- 
cult both  as  to  the  determination  of  who  are  the  heirs  of  an 
ancestor  and  also,  in  understanding  the  law  of  the  subject. 
The  loose  marriage  customs  among  the  Indians  and  freedmen 
in  the  Creek  country,  and  among  the  other  peoples  of  the 
five  civilized  tribes,  make  it  difficult  to  ascertain  who  the 
descendants  are,  and  the  frequent  changes  of  the  law  made 
by  the  Federal  Government  as  to  the  subject  of  descent, 
necessitates  a  great  deal  of  labor  on  the  part  of  the  prac- 
titioner in  mastering  the  laws  of  inheritance  in  this  State. 
Of  course,  since  statehood,  the  subject  is  no  more  difficult 
than  in  the  other  States,  but  prior  to  that  time,  the  law  of 
the  subject  of  descent  in  the  Indian  Territory  is  found  in  the 
subject  of  descent  and  distribution  as  found  in  Mansfield's 
Digest  of  the  statutes  of  Arkansas,  and  the  laws  of  the  Creek 
nation  of  Indians  and  the  laws  of  the  other  five  civilized 
tribes  in  Indian  Territory.  Later  in  the  discussion  of  the 
subject  of  descent  there  will  be  found  the  Federal  law  and 
the  Indian  laws  on  the  subject. 


421  DESCENT    AND   DISTRIBUTION.  §§518-520 

Sec.  518.    Dower  and  curtesy  abolished  in  Oklahoma. 

In  the  discussion  of  this  subject  the  Oklahoma  law  will  be 
first  set  forth.  Then  the  Arkansas  law  and  the  various  Indian 
laws  beginning  with  the  Creek  law,  will  be  taken  up  and 
discussed.  As  the  Legislature  of  the  State  of  Oklahoma  has 
abolished  the  subject  of  dower  and  curtesy,  neither  of  these 
subjects  will  be  discussed  in  this  chapter.- 


Sec.  519.    Discussion  of  terms— Statutory  definition  of  suc- 
cession. 

The  subject  of  descent  and  distribution  is  now  regulated 
in  this  State  by  statute,  and  the  provisions  of  this  chapter 
now  govern.  The  term  "descent"  is  applied  to  real  property, 
and  the  term  "distribution"  is  applied  to  the  division  made 
by  the  law  of  the  personal  property  of  one  dying  without  a 
will.  The  statute  says  that  succession  is  the  coming  in  of 
another  to  take  the  property  of  one  who  dies  without  dis- 
posing of  it  by  will.^ 


Sec.  520.    Proper  persons  to  take  property  of  a  deceased. 

This  subject  is  regulated  by  statute.  It  is  provided  that 
all  the  property  of  a  decedent,  except  as  otherwise  provided 
for  the  homestead,  and  personal  property  set  apart  for  the 
surviving  wife  or  husband,  and  minor  child  or  children,  shall 
be  chargeable  with  the  payment  of  the  debts  of  the  deceased, 
the  expenses  of  the  administration,  and  the  allowance  to  the 
family.  And  the  property,  personal  and  real,  may  be  sold 
as  the  court  may  direct  in  the  manner  provided  by  statute. 


2  Snyder,  8,986;   Wilson,  6,896.  s  Snyder,    8,983;     Wilson,    6,893; 

Dakota  Code,  3,397   (1887). 


§  §  521,  522  MERWINE  'S   TRIAL   OF   TITLE   TO   LAND.  422 

There  can  be  no  priority  as  between  personal  and  real  prop- 
erty for  the  above  purposes.* 

The  executor  or  administrator  is  entitled  to  the  possession  of 
all  the  real  and  personal  estate  of  the  decedent,  and  to  receive 
the  rents  and  profits  of  the  real  estate,  except  the  realty  and 
improvements  thereon  properly  belonging  to  the  homestead,  and 
such  personal  property  as  is  reserved  by  law  to  the  widow  and 
children  of  the  decedent,  or  either  of  them,  until  the  estate  is 
settled  or  delivered  over  by  order  of  the  county  court  to  the 
heirs  and  devisees;  and  must  keep  in  good  tenantable  repair 
all  houses,  buildings  and  fences  thereon,  which  are  under 
his  control.  The  heirs  or  devisees  may  themselves,  or  jointly 
with  the  executor  or  administrator,  maintain  an  action  for 
the  possession  of  the  real  estate,  or  for  the  purpose  of  quiet- 
ing the  title  to  the  same,  against  anyone,  except  the  executor 
or  administrator.^ 

Sec.  521.    What  property  passes  to  the  heirs. 

The  property,  both  real  and  personal,  of  one  who  dies  with- 
out disposing  of  it  by  will,  passes  to  the  heirs  of  the 
intestate,  subject  to  the  control  of  the  county  court,  and  the 
possession  of  any  administrator  appointed  by  that  court  for 
the  purpose  of  administration.'' 

Sec.  522.    Inheritance  by  illeg-itimate  child. 

Every  illegitimate  child  is  the  heir  of  the  person  who  in 
writing,  signed  in  the  presence  of  a  competent  witness,  ac- 
knowledges himself  to  be  the  father  of  such  child;  and  in 
all  cases  is  an  heir  of  his  mother ;  and  inherits  his  or  her 
estate,  in  whole  or  in  part,  as  the  case  may  be,  in  the  same 
manner  as  if  he  had  been  born  in  lawful  wedlock ;  but  he 
does  not  represent  his  father  or  mother  by  inheriting  any 
part  of  the  estate  of  his  or  her  kindred,  either  lineal  or  col- 

4  Snyder,   5,299;   Wilson,    1,641.  e  Snyder,   8,984;   Wilson,   6,894. 

5  Snyder,   5,259;    Wilson,   1,601. 


423  DESCENT    AND   DISTRIBUTION.  §§  523-525 

lateral,  unless  before  his  death  his  parents  shall  have  inter- 
married, and  his  father  after  such  marriage,  acknowledges 
him  as  his  child,  or  adopts  him  into  his  family ;  in  which 
ease  such  child  and  all  the  illegitimate  children  are  consid- 
ered brothers  and  sisters,  and  on  the  death  of  either  of 
them,  intestate,  and  without  issue,  the  others  inherit  his 
estate,  and  are  heirs  as  hereinbefore  provided,  in  like  manner 
as  if  all  the  children  had  been  legitimate,  saving  to  the  father 
and  mother  respectively  their  rights  in  the  estate  of  all  the 
children  in  like  manner  as  if  all  had  been  legitimate.  The 
issue  of  all  marriages  null  in  law  or  dissolved  by  divorce,  are 
legitimate.'^ 

Sec.  523.    Inheritance  from  an  illegitimate  child. 

If  an  illegitimate  child,  who  has  not  been  acknowledged 
or  adopted  by  his  father,  dies  intestate,  without  lawful  issue, 
his  estate  goes  to  his  mother,  or,  in  case  of  her  decease,  to  her 
heirs  at  law.^ 

Sec.  524.    Degrees  of  kindred,  how  established. 

The  Legislature  of  this  State  has  provided  that  the  degree 
of  kindred  is  established  by  the  number  of  generations,  and 
each  generation  is  called  a  degree.^ 

Sec.  525.    Lineal  and  collateral  descent. 

The  series  of  degrees  from  the  line;  the  series  of  degrees 
between  persons  who  descend  from  one  another  is  called 
direct  or  lineal  consanguinity ;  and  the  series  of  degrees  be- 
tween persons  who  do  not  descend  from  one  another,  but 
spring  from  a  common  ancestor,  is  called  the  collateral  line  or 
collateral  consanguinity.^" 

7  Snyder,    8,987;     Wilson,    6,807;  8  Snyder,    8,988;  Wilson,    6,898; 

California,    230     (Kerr),    identical;  Dakota  Code,  3.404  (1887). 

North    Dakota   Code,   5,189    (1905),  9  Snyder,     8,9S9;  Wilson,     6,899; 

similar;   Allison  v.  Bryan,  21  Okla.  Dakota    Code,    3,405    (1887). 

537,    97    Pac.    382;    Pina    v.    Peck,  lo  Snyder,    8,990;  Wilson,    6,900; 

31    Cal.    359;    Blythe   v.    Ayers,    96  Dakota  Code,  3,406  (1887). 
Cal.    532,    31    Pac.    915;    Estate   of 
Warden,  57  Cal.  484. 


§§526-529         merwine's  trial  op  title  to  land.  424 

Sec.  526.    The  lines  ascending  and  descending. 

The  direct  line  is  divided  into  the  direct  line  descending 
and  the  direct  line  ascending.  The  first  is  that  which  con- 
nects the  ancestor  with  those  who  descend  from  him.  The 
second  is  that  which  connects  a  person  with  those  from  whom 
he  descends.^^ 

Sec.  527.    The  degrees  in  the  direct  line. 

In  the  direct  line  there  are  as  many  degrees  as  there  are 
generations.  Thus,  the  son  is  with  regard  to  the  father  in 
the  first  degree,  the  grandson  in  the  second;  and  vice  versa 
with  regard  to  the  father  and  grandfather  toward  the  sons 
and  grandsons.^^ 

Sec.  528.    The  degrees  of  the  collateral  line. 

In  the  collateral  line  the  degrees  are  counted  by  genera- 
tions from  one  of  the  relations  up  to  the  common  ancestor, 
and  from  the  common  ancestor  to  the  other  relations.  In 
such  computation  the  decedent  is  excluded,  the  relative  in- 
cluded, and  the  ancestor  counted  hut  once.  Thus,  brothers 
are  related  in  the  second  degree,  uncle  and  nephew  in  the 
third  degree,  cousins  germane  in  the  fourth  degree,  and 
so  on.^^ 

Sec.  529.    Inheritance  by  kindred  of  the  half-blood. 

Kindred  of  the  half-blood  inherit  equally  with  those  of  the 
whole  blood  in  the  same  degree,  unless  the  inheritance  come 
to  the  intestate  by  descent,  devise  or  gift  of  some  one  of  his 
ancestors,  in  which  case  all  those  who  are  not  of  the  blood  of 
such  ancestor  must  be  excluded  from  such  inheritance." 

11  Snyder,  9,881;  Wilson,  6,901;  i*  Snyder,  8.994;  Wilson.  6,904; 
Dakota  Code,    3,407    (1887).  California,   1.394    (Kerr),  identical; 

12  Snyder,  8.992;  Wilson,  6,902,  Estate  of  Smith,  131  Cal.  433,  63 
Dakota  Code,  3.408   (1887).  Pac.    729;    Estate   of    Pearson,    110 

13  Snyder,    8,993;    Wilson,    6,903;  Cal.  524,  42  Pac.  960. 
Dakota  Code,   3,409    (1887). 


425 


DESCENT    AND   DISTRIBUTION,  §§-530-533 


Sec.  530.     Advancement  of  child's  part. 

Any  estate,  real  or  personal,  given  by  the  deceased  in  his 
lifetime,  as  an  advancement  to  any  child  or  lineal  descendant, 
is  a  part  of  the  estate  of  the  decedent  for  the  purpose  of 
division  and  distribution  thereof  among  his  issue,  and  must 
be  taken  by  such  child,  or*  other  lineal  descendant,  toward 
his  share  of  the  estate  of  the  decedent.^^ 

Sec.  531.    Advancement — Excess  not  refunded. 

If  the  amount  of  the  advancement  exceeds  the  share  of 
the  heir  receiving  the  same,  he  must  be  excluded  from  any 
further  portion  in  the  division  and  distribution  of  the  estate, 
but  he  must  not  be  required  to  refund  any  part  of  such  ad- 
vancement; and,  if  the  amount  so  received  is  less  than  his 
share,  he  is  entitled  to  so  much  more  as  will  give  him  his 
full  share  of  the  estate  of  the  decedent.^* 

Sec.  532.    Advancement  defined. 

All  gifts  and  grants  are  made  as  advancements  if  expressed 
in  the  gift  or  grant  to  be  so  made,  or  if  charged  in  writing 
as  an  advancement,  or  acknowledged  in  writing  as  such  by 
the  child  or  other  successors,  or  heirs." 

Sec.  533;    Advancement — Expressed  value  governs,  when. 

If  the  value  of  the  estate  so  advanced  is  expressed  in  the 
conveyance,  or  in  the  charge  thereof  made  by  the  decedent, 
or  in  the  acknowledgment  of  the  party  receiving  it,  it  must 
be  held  as  of  that  value  in  the  division  and  distribution  of 
the  estate;  otherwise  it  must  be  estimated  according  to  its 
value  when  given,  as  nearly  as  the  same  can  be  ascertained.^* 

15  Snyder,  8,995;  Wilson,  6,905:  "Snyder,  8.097;  Wilson,  6,907; 
Dakota  Code,  3,411  (1887).                       Dakota   Code,    3,413     (1887). 

16  Snyder,  8,996;  Wilson,  6,906;  is  Snyder,  8,998;  Wilson,  6,908; 
Dakota  Code,  3,412  (1887).                     Dakota   Code,   3,414    (1887). 


§§534-537  MERWINE^S   TRIAL.   OF   TITLE   TO   LAND. 


426 


Sec.  534.  Advancement— When  the  descendant  receiving  it 
dies  before  decedent. 
If  any  child  or  other  lineal  descendant  receiving  an  ad- 
vancement dies  before  the  decedent,  leaving  issue,  the  ad- 
vancement must  be  taken  into  consideration  in  the  division 
and  distribution  of  the  estate,  and  the  amount  thereof  must 
be  allowed  accordingly  by  the  representatives  of  the  heirs 
receiving  the  advancement,  in  like  manner  as  if  the  advance- 
ment had  been  made  directly  to  them.^** 

Sec.  535.    Inheritance  by  representation. 

Inheritance  or  succession  by  right  of  representation  takes 
place  when  the  descendants  of  any  deceased  heir  take  the 
same  share  or  right  in  the  estate  of  another  person  that 
their  parents  would  have  taken  if  living.  Posthumous  chil- 
dren are  considered  as  living  at  the  death  of  their  parents.'** 

Sec.  536.     Aliens  may  inherit. 

Aliens  may  take  in  all  cases  by  succession  as  well  as 
citizens.  And  no  person  capable  of  succeeding  under  the 
provisions  of  this  chapter  is  precluded  from  such  succession 
by  reason  of  the  alienage  of  any  relative.'^ 

Sec.  537.    An  estate  escheats,  when— Subject  to  what  charges. 

If  there  is  no  one  capable  of  succeeding  under  the  pre- 
ceding sections,  and  the  title  fails  from  a  defect  of  heirs,  the 
property  of  the  deceased  devolves  and  escheats  to  the  State; 
and  an  action  for  the  recovery  of  such  property,  and  to 
reduce  it  into  the  possession  of  the  State,  or  for  its  sale 
and  conveyance  may  be  brought  by  the  county  attorney  in 
the  district  court  of  the  county,  or  Federal  subdivision  in 
which  the  property  is  situated.  Real  property  passing  to  the 
State,  under  the  preceding  provision,  whether  held  by  the 

19  Snyder.  8,909;  Wilson,  6,909;  21  Snyder,  9,001;  Wilson,  6,911; 
Dakota   Code,   3,415    (1887).                    Dakota   Code,    3,417    (1887)., 

20  Snyder,  9,000;  Wilson,  6,900. 


427  DESCENT    AND    DISTRIBUTION.  §§  538-540 

State,  or  its  grantee^,  is  subject  to  the  same  charges  and 
trusts  to  which  it  would  have  been  subject  if  it  had  passed 
by  succession.^^ 

Sec.  538.    Heirs  must  pay  obligations  of  decedent. 

Those  who  succeed  to  property  of  a  decedent  are  liable  for 
his  obligations  in  the  cases  and  to  the  extent  prescribed  by 
the  probate  code.^^  ^, 

Sec.    539.    The    order    of    succession— Wife    and    children— • 
Lineal  descendants. 

When  any  person  having  title  to  any  estate  not  otherwise 
limited  by  marriage  contract,  dies  without  disposing  of  the 
estate  by  will,  it  descends  and  must  be  distributed  in  the 
manner  following: 

If  the  decedent  leave  a  surviving  husband  or  wife,  and 
only  one  child,  or  the  lawful  issue  of  one  child,  in  equal 
shares  to  the  surviving  husband  or  wife  and  child,  or  issue 
of  such  child.  If  the  decedent  leave  a  surviving  husband  or 
wife,  and  more  than  one  child  living,  and  the  lawful  issue 
of  one  or  more  deceased  children,  one-third  to  the  surviving 
husband  or  wife  and  the  remainder  in  equal  shares  to  his 
children  and  the  lawful  issue  of  any  deceased  child,  by  right 
of  representation;  and  if  there  be  no  child  of  the  decedent 
living  at  his  death,  the  remainder  goes  to  all  of  his  lineal 
descendants;  and  if  all  the  descendants  are  in  the  same 
degree  of  kindred  to  the  decedent,  they  share  equally,  other- 
wise, they  take  according  to  the  right  of  representation.^* 

Sec.  540.    Where  decedent  was  married  more  than  once. 

When  any  person  having  title  to  any  estate  not  otherwise 
limited  by  marriage  contract,  dies  v/ithout  disposing  of  it 
by  will,  it  descends  and  must  be  distributed : 

22  Snyder,   9,002   and   9,003;    Wil-  23  Snyder,    8,904;    Wilson,    6,914; 

son,  6,912  and  6,913;   Dakota  Code,       Dakota   Code,   3,419    (1887). 
3,418  and  3,419    (1887).  24  Snyder,  8,985 ;  Act  of  March  20. 

1909. 


§§  541, 542         merwine's  trial  of  title  to  land.  428 

If  the  decedent  shall  have  been  married  more  than  once, 
the  spouse  at  the  time  of  death  shall  inherit  of  the  property 
not  acquired  during  coverture  with  such  spouse,  only  an 
equal  part  with  each  of  the  living  children  of  decedent,  and 
the  lawful  issue  of  any  deceased  child  by  right  of  representa- 
tion.^** 

Sec.  541.  Where  decedent  leaves  no  surviving  husband  or 
wife. 
If  a  decedent  having  title  to  any  estate  not  otherwise  lim- 
ited by  marriage  contract,  dies  intestate,  leaving  no  surviving 
husband  or  wife,  but  lawful  issue,  the  whole  estate  goes  to 
such  issue,  and  if  such  issue  consists  of  more  than  one  child 
living,  or  one  child  living  and  the  lawful  issue  of  one  or 
more  deceased  children,  then  the  estate  goes  in  equal  shares 
to  the  children  living  and  the  issue  of  the  deceased  child  or 
children  by  right  of  representation.^^ 

Sec.  542.    Where  decedent  leaves  no  issue. 

When  any  person  having  title  to  any  estate  not  otherwise 
limited  by  marriage  contract,  dies  without  disposing  of  the 
estate  by  will,  if  he  leave  no  issue,  the  estate  goes  one-half 
to  the  surviving  husband  or  wife,  and  the  remaining  one- 
half  to  decedent's  father  or  mother,  or,  if  he  leave  both 
father  and  mother,  to  them  in  equal  shares.  If  there  be  no 
father  then  one-half  goes,  in  equal  shares,  to  the  brothers 
and  sisters  of  the  decedent  and  to  the  children  of  any  de- 
ceased brother  and  sister,  by  right  of  representation.  If 
decedent  leave  no  issue,  nor  husband  or  wife,  the  estate  must 
go  to  the  father  or  mother,  or  if  he  leave  both  father  and 
mother,  to  them  in  equal  shares.-'' 

25  Snyder,  8,985;  Act  of  :\Tarch  20.  27  Snyder,  8,985;  Act  of  March  20, 
1909.                                                                 1909- 

26  Snyder,  8,985 ;  Act  of  March  20, 
1909. 


429  DESCENT    AND   DISTRIBUTION.  §§  543-545 

Sec.  543.    Where  property  acquired  by  joint  industry  of  hus- 
band and  wife. 

"When  any  person  having  title  to  any  estate  not  otherwise 
limited  by  marriage  contract,  dies  without  disposing  of  the 
estate  by  will,  in  all  cases  where  such  property  is  acquired 
by  the  joint  industry  of  husband  and  wife  during  cover- 
ture, and  there  is  no  issue,  the  whole  estate  will  go  to  the 
survivor,  at  whose  death,  if  any  of  the  said  property  remain, 
one-half  of  such  property  will  go  to  the  heirs  of  the  husband 
and  one-half  to  the  heirs  of  the  wife,  according  to  the  right 
of  representation.-®  j 

1 

Sec.  544.  Where  there  is  no  issue,  no  husband,  no  wife,  no 
father  and  no  mother. 
When  any  person  having  title  to  any  estate  not  otherwise 
limited  by  marriage  contract,  dies  without  disposing  of  it 
by  will,  if  there  be  no  issue,  nor  husband,  nor  wife,  nor 
father  nor  mother,  then  the  same  shall  descend  in  equal 
shares  to  the  brothers  and  sisters  of  the  decedent,  and  the 
children  of  any  deceased  brother  or  sister  by  right  of  rep- 
resentation ;  if  the  decedent,  being  a  minor,  leave  no  issue, 
the  estate  must  go  to  the  parents  equally,  if  living  together; 
if  not  living  together,  to  the  parent  having  had  the  care  of 
such  deceased  minor.-^ 

Sec.  545.  Where  there  is  no  issue,  no  husband,  no  wife,  no 
father,  no  brother  and  no  sister. 
When  any  person  having  title  to  any  estate  not  otherwise 
limited  by  marriage  contract,  dies  without  disposing  of  the 
estate  by  will,  if  the  decedent  leave  no  issue,  nor  husband 
nor  wife,  nor  father  and  no  brother  or  sister  is  living  at  the 
time  of  his  death,  the  estate  goes  to  his  mother,  to  the  exclu- 
sion of  the  issue,  if  any,  of  deceased  brothers  and  sisters."'*' 

28  Snyder,  8,985;  Act  of  March  20,  3o  Snyder,  8,985;  Act  of  March  20, 
1909.                                                                 1909. 

29  Snyder,  8,985;  Act  of  March  20, 
1909. 


§§  546-548         mebwine's  trial  of  title  to  land.  430 

Sec.  546.  Where  decedent  leaves  a  surviving  husband  or 
wife,  no  issue,  no  father,  no  mother,  no  brother 
and  no  sister. 

When  any  person  having  title  to  any  estate  not  otherwise 
limited  by  marriage  contract,  dies  without  disposing  of  the 
estate  by  will,  if  the  decedent  leave  a  surviving  husband  or 
wife  and  no  issue,  and  no  father  nor  mother  nor  brother  nor 
sister,  the  whole  estate  goes  to  the  surviving  husband  or 
wife.^^ 

Sec.  547.  Where  decedent  leaves  no  issue,  no  husband,  no 
wife,  no  father,  no  mother,  no  brother,  no  sister. 

When  any  person  having  title  to  any  estate  not  otherwise 
limited  by  marriage  contract,  dies  without  disposing  of  the 
estate  by  will,  if  the  decedent  leave  no  issue,  nor  husband 
nor  wife  and  no  father  or  mother,  nor  brother  nor  sister,  the 
estate  must  go  to  the  nearest  of  kin  in  equal  degree,  except- 
ing that  there  are  two  or  more  collateral  kindred  in  equal 
degree,  but  claiming  through  different  ancestors,  those  who 
claim  through  the  nearest  ancestors  must  be  preferred  to 
those  claiming  through  an  ancestor  more  remote,  however.^^ 

Sec.  548.     Where  the  decedent  leaves  several  children,  or  one 
child  and  the  issue  of  one  or  more  children,  and 
any  such  surviving  child  dies  under  age  and  not 
having  been  married,  holding  an  estate  of  in- 
heritance. 
When  any  person  having  title  to  any  estate  not  otherwise 
limited  by  marriage  contract,  dies  without  disposing  of  the 
estate  by  will,  if  the  decedent  leave  several  children,  or  one 
child,  and  the  issue  of  one  or  more  children,  and  any  such 
surviving  child  dies  under  age,  and  not  having  been  married, 
all  the  estate  that  came  to  the  deceased  child  by  inheritance 
from   such   decedent   descends  in   equal   shares  to   the   other 


31  Snyder,  8,985 ;  Act  of  March  20,  32  Snyder,  8,985 ;  Act  of  March  20, 

1909.  1909. 


431  DESCENT    AND   DISTRIBUTION.  §§  549-550a 

children  of  the  same  parent,  and  to  the  issue  of  any  such- 
other  children  who  are  dead,  by  right  of  representation.^' 


Sec.  549.  Where  decedent  dies  under  age,  unmarried,  and  all 
the  other  children  of  his  parents  are  dead  and 
any  of  them  have  lawful  issue,  leaving  an  estate 
of  inheritance  from  his  parents. 

When  any  person  having  title  to  any  estate  not  otherwise 
limited  by  marriage  contract,  dies  without  disposing  of  the 
estate  by  will,  if,  at  the  death  of  such  child,  who  dies  under 
age,  not  having  been  married,  and  all  the  other  children  of 
his  parents  are  also  dead,  and  any  of  them  have  lawful  issue, 
the  estate  that  came  to  such  child  by  inheritance  from  his 
parent  descends  to  the  issue  of  all  other  children  by  the 
same  parent;  and  if  all  the  issue  are  in  the  same  degree  of 
kindred  to  the  child,  they  share  the  estate  equally,  otherwise, 
they  take  according  to  the  right  of  representation.'* 

Sec.  550.    The  estate  will  escheat,  when. 

When  any  person  having  title  to  any  estate  not  otherwise 
limited  by  marriage  contract,  dies  without  disposing  of  the 
estate  by  will,  if  the  decedent  leave  no  husband,  wife  or 
kindred,  the  estate  escheats  to  the  State  for  the  support  of 
common  schools.'^ 


Sec.  550a.    Change  in  statutes  of  Oklahoma. 

Attention  is  here  called  to  the  fact  that  the  law  of  descent 
as  it  was  at  statehood  has  been  since  modified  materially  by 
the  Legislature,  and  the  modification  is  to  be  carefully  ob- 
served.'® 

33  Snyder,  8,985 ;  Act  of  March  20,  ss  Snyder,  8,985 ;  Act  of  March  20, 
1009.  1909. 

34  Snyder,  8,985 ;  Act  of  March  20,  36  See  Wilson's  Stat.,  1903,  and 
1909.  the  foregoing. 


§551  merwine's  trial  of  title  to  land.  432 


2.     TITLE  BY  DESCENT  FOR  FIVE  CIVILIZED  TRIBES. 

SECTION 

551.  Descent  for  Creek,  Cherokee, 
Choctaw,  Chickasaw  and 
Seminole    nations. 

Sec.  551.  Descent  for  Creek,  Cherokee,  Choctaw,  Chickasaw 
and  Seminole  nations. 
The  subject  of  descent  for  each  of  these  nations  is  discussed 
under  separate  chapters,  under  the  topic  of  Indian  Land  Laws. 
For  Creek  law  of  descent,  see  Sec.  1735,  and  following;  for 
Cherokee  law  of  descent,  see  Sec.  1817,  and  following;  for 
Choctaw  and  Chickasaw  law  of  descent,  see  Sec.  1776,  and 
following,  and  for  the  law  of  descent  for  the  Seminole  Nation, 
see  Sec.  1842,  and  following. 


433 


DESCENT    AND    DISTRIBUTION. 


§552 


3.    LAW  OF  DESCENTS— THE  ARKANSAS  STATUTE. 


SECTIO^ 

552.  Children   inherit,   when. 

553.  Inheritance  when  there  are  no 

children  nor  their  descend- 
ants, no  father,  no  mother, 
no  brother,  or  sister,  or  their 
descendants. 

554.  Construction  of  statutes — ^Ivelly 

V.  McGuire — Ancestral  and 
nonancestral  property — De- 
scent per  stirpes  and  per 
capita. 

Posthumous  children. 

Illeuitimate     children      inherit 
from    the    mother — Marriage 
will  legitimatize,  when. 
557.  Children     where     marriage     is 
null. 

An  alien  may  inherit. 

Where  there  are  no  children 
nor  their  descendants,  no 
father,  no  mother,  nor  their 
descendants,  or  any  paternal 
or  maternal  kindred  capable 
of  inheriting. 


555. 
550. 


558. 
559. 


SECTIOX 

560.  Per  capita  and  per  stirpes. 

501.  Ancestral       and      nonancestral 

property. 

502.  Where     there     is     default     of 

father  and  mother. 

503.  Half-bloods. 

564.  Where  not  provided  by  statute 

inheritance  to  go  as  at  com- 
mon law — Several  inherit  as 
descendants  in  common. 

565.  Conflict   of   laws. 

566.  Construction   of   certain   terms 

of  the  statutes  of  descent. 

567.  Heir   at  law  may  be  made  by 

declaration  m  writing — Dec- 
laration must  be  recorded 
or  same  shall  have  no  force. 

568.  Advancement      by      settlement 

of  portion  to  child — ^How 
reckoned  and  effect  of — When 
not  equal  lo  share  of  estate — 
Value  of  such  advance- 
ment, how  ascertained — Main- 
tenance, education,  and  the 
like  not  to  be  taken  as 
advancement,  when. 


Sec.  552.    Children  inherit,  when. 

When  any  person  shall  die,  having 
of  inheritance,  or  personal  estate,  not 
wise  limited  by  marriage  settlement, 
as  to  such  estate,  it  shall  descend 
parcenary,  to  his  kindred,  male  and 
payment  of  his  debts,  and  the  widow's 
manner : 

To  children,  or  their  descendants,  in 


title  to  any  real  estate 
disposed  of,  nor  other- 
and  shall  be  intestate 
and  be  distributed,  in 
female,  subject  to  the 
dower,  in  the  following 

equal  parts.^ 


1  Section    2,522,   Mansfield's   Digest     of     Statutes     of     Arkansas;      Sec. 
1,820,  Ind.  Ter.  Stat.    (1899). 


§§  553, 554         merwine's  trial  of  title  to  land.  434 

Sec.  553.  Inheritance  when  there  are  no  children  nor  their 
descendants,  no  father,  no  mother,  no  brother  or 
sister  or  their  descendants. 

When  any  person  shall  die,  having  title  to  any  real  estate 
of  inheritance,  or  personal  estate,  not  disposed  of,  nor  other- 
wise limited  by  marriage  settlement,  and  shall  be  intestate 
as  to  such  estate,  it  shall  descend  and  be  distributed,  in 
parcenary,  to  his  kindred,  male  and  female,  subject  to  the 
payment  of  his  debts  and  the  widow's  dower,  in  the  manner 
following : 

If  there  be  no  children,  then  to  the  father,  then  to  the 
mother;  if  no  mother,  then  to  the  brothers  and  sisters,  or 
their  descendants,  in  equal  parts.^ 

If  there  be  no  children  nor  their  descendants,  father, 
mother,  brothers  or  sisters,  nor  their  descendants,  then  to  the 
grandfather,  grandmother,  uncles  and  aunts  and  their  de- 
scendants, in  equal  parts,  and  so  on  in  other  cases,  without 
end,  passing  to  the  nearest  lineal  ancestor  and  their  children 
and  their  descendants,  in  equal  parts.^ 

Sec.  554.  Construction  of  statute — Kelly  v.  McGuire — An- 
cestral and  nonancestral  property — Descent  per 
stirpes  and  per  capita. 

The  Supreme  Court  of  Arkansas  early  in  its  history,  in  a 
very  lengthy  and  able  opinion,  construed  the  foregoing  and 
other   kindred   statutes    of   descent   and   distribution   in   this 

2  Section  2,522,  Mansfield's  Di-  scents  (Mansfield's  Digest,  2,522), 
gest  of  tiie  Statutes  of  Arkansas;  although  his  father  paid  the  fees 
Sec.    1,820,   Ind.   Ter.    Stat.    (1899).  necessary   to   obtain   the    deed,    and 

3  Section  2,522,  Mansfield's  Digest  on  his  dying  intestate  and  without 
of  the  Statutes  of  Arkansas;  Sec.  issue,  it  descended  first  to  his 
1,820,  Ind.  Ter.  Stat.  (1899).  father  and  then  to  his  mother  for 
Where,  under  the  Statute  found  in  life.  In  such  case,  no  interest  in 
English's  Digest,  Chap.  97,  Art.  1,  the  land  can  be  devised  by  the 
and  the  Act  of  December  12,  1850,  father,  and  on  his  death  the  sister 
amendatory  thereof,  land  was  do-  of  the  deceased  cannot  maintain 
nated  by  the  State  to  a  minor,  it  ejectment  for  it  without  proving  the 
was  a  new  acquisition  by  him  within  death  of  the  mother.  Hogan  v. 
the   meaning   of   the   statute  of   de-  Finley,  52  Ark.  55. 


435  DESCENT   AND   DISTRIBUTION.  §  554 

State.  The  decision  has  since  been  followed  by  the  later 
decisions  of  the  case.     We  here  quote  from  the  decision: 

It  is  a  general  rule  of  construction,  that  a  statute  should 
be  so  considered  as  that  every  clause,  sentence,  or  part,  shall 
stand,  if  possible;  and  that  general  words  or  clauses  may 
be  restrained  by  particular  words  or  clauses  in  the  same 
statute;  and  when  there  are  different  provisions  in  the  same 
statute  expressed  in  different  words,  they  ought  to  be  so 
construed  as  to  avoid  inconsistency.  It  would  be  unsafe  to 
construe  a  statute  according  to  mere  grammatical  rules,  or 
to  rely  on  punctuation,  as  any  material  aid  in  ascertaining 
the  true  meaning.  Neither  bad  grammar  nor  bad  English 
will  vitiate  a  statute.  The  true  construction  of  our  statute 
of  descents  and  distributions  is: 

(a)  That,  as  to  both  real  and  personal  property,  it  was  the 
design  of  the  Legislature,  when  there  were  descendants  of 
the  intestate,  to  send  down  both  to  them,  per  capita,  if  in 
equal  degree,  and  per  stirpes,  if  in  unequal  degree,  without 
any  regard  to  the  fact  as  to  how  the  estate  was  acquired. 

(&)  That,  as  to  personal  estate,  it  was  the  design,  where 
there  were  no  descendants,  that  it  should  go  to  collaterals, 
in  the  same  way  it  would  have  gone  to  descendants,  if  there 
had  been  any;  that  is  to  say,  per  capita,  if  in  equal  degree, 
and  per  stirpes,  if  in  unequal  degree,  without  inquiry  as  to 
how  the  property  was  acquired  by  the  intestate. 

(c)  That,  as  to  real  estate,  it  was  the  design  of  the  Legis- 
lature, where  there  were  no  descendants,  to  point  out  the 
lines  of  the  succession,  and  that  this  to  depend  on  the  fact 
whether  the  inheritance  is  ancestral  or  new;  and,  if  ancestral, 
then  whether  it  come  from  the  paternal  or  maternal  line. 

(d)  If  the  inheritance  was  ancestral,  and  come  from  the 
father's  side,  then  it  will  go  to  the  line  on  the  part  of  the 
father,  from  whence  it  came,  not  in  postponement,  but  in 
exclusion  of  the  mother's  line;  and  so,  on  the  other  hand, 
if  it  come  from  the  mother's  side,  then  to  the  line  on  the 
part  of  the  mother,  from  whence  it  came,  to  the  exclusion 
of  the  father's  line. 


§  554  merwine's  trIxVl  op  title  to  land.  436 

(e)  If  the  inheritance  be  not  ancestral,  but  a  new  acquisi- 
tion, then,  after  lawful  estate  reserved  in  succession  to  the 
father  and  mother,  if  alive,  it  will  go  in  remainder,  first,  to 
the  line  of  the  intestate's  paternal  uncle  and  aunts,  and  their 
descendants,  in  postponement  of  the  mother's  line,  until  the 
former  becomes  extinct;  and  then  to  the  line  of  the  intestate's 
maternal  uncles  and  aunts  and  their  descendants;  unless 
there  should  be  kindred  lineal  or  collateral,  who,  either  in 
right  of  propinquity,  or  by  right  of  representation,  stand  in  a 
nearer  relation  to  the  intestate  than  the  uncles  and  aunts :  in 
which  case,  such  nearer  kindred  would  take  the  inheritance 
to  the  exclusion  of  both  of  these  collateral  lines ;  and,  in  their 
hands  it  would  become  an  ancestral  estate,  and  afterwards 
go  into  the  blood  of  the  relative  from  \vhence  it  came,  in  the 
ordinary  course  of  descent,  prescribed  for  ancestral  inher- 
itances. 

(/)  That,  when  the  inheritance  is  fixed  by  these  facts,  in 
any  given  line,  it  will  pursue  that  line  until  it  becomes 
extinct,  and  the  objects  of  bounty,  and  the  order  in  which 
they  succeed  one  another,  and  the  proportion  they  take,  are 
to  be  ascertained  by  the  first  section,  which  is  to  be  consid- 
ered as  the  general  rule  of  descent.  The  father,  mother, 
brothers,  sisters,  and  so  on,  mentioned  in  that  section,  are 
those  who  are  to  be  considered  when  counting  from  any 
propositus,  whether  the  propositus  of  a  single  line  only  or  con- 
current propositus  of  both  lines,  as  the  intestate  is  as  to  personal 
property. 

(g)  In  all  cases  where  the  inheritance  is  in  any  one  line, 
it  there  goes  in  succession  per  capita,  if  in  equal  degree,  and 
per  stirpes,  if  in  unequal  degree,  precisely  as  if  the  other 
line  was  extinct,  and  precisely  as  the  inheritance  of  a  bastard 
would  take  a  course  in  his  mother's  line,  he  having  no 
father's  line  at  all. 

(h)  The  half-blood  and  their  descendants,  take  personalty, 
as  well  as  realty,  equally  with  the  whole  blood,  except  that 


437 


DESCENT    AND   DISTRIBUTION. 


§554 


they  are  excluded  from  real  estate,  when  ancestral,  if  they 
lack  the  blood  to  the  transmitting  ancestor.* 

This  decision  has  become  a  rule  of  property.  Indeed,  it 
has  been  said  that  the  foregoing  decision,  rendered  after 
full  argument  and  patient  consideration,  endeavored  to  shape 
into  form  and  order  our  confused  and  incongruous  law  of 
descents  and  distributions.  The  rules  educed  from  the  pro- 
visions of  the  statute  of  descents  and  distributions  of  this 
State,  and  formulated  in  that  case,  met  with  the  approbation 
of  the  profession,  and  the  principles  therein  set  forth  have 
since  been  followed  until  they  have  become  rules  of 
property — so  much  so,  that  the  rules  in  what  the  Supreme 
Court  afterwards  has  seen  fit  to  designate  as  the  Kelly  case, 
have  been  oftener  cited  and  are  more  familiar  to  the  pro- 
fession than  the  rule  in  Shelly 's  case.  It  must  now  be  left 
to  the  Legislature  to  disturb  them,  if  right  and  justice  may 
ever  seem  to  require  it.  Nothing  in  our  judicature  calls  more 
emphatically  for  the  application  of  the  policy  of  the  courts, 
stare  decisis.^ 


4  Kelly  V.  McGuire,  15  Ark.  556. 
The  facts  in  this  case  are,  that, 
about  the  rear,  ISIO,  Charles  Kelly 
migrated  to  what  is  i^ow  Arkansas: 
and,  in  1815,  married  Mrs.  Craig, 
a  widow,  who  had  two  children  by 
a  former  marriage,  named  Elizabeth 
and  Emmeline.  Charles  Kelly,  an 
enterprising,  shrewd  business  man, 
aided  by  the  prudence,  skill  and 
good  management  of  his  wife,  ac- 
cumulated in  Arkansas,  where  he 
lived,  a  large  estate,  consisting  of 
real  and  personal  property.  He 
died  intestate  in  1834,  and,  by  the 
law  in  force,  his  real  estate  de- 
scended and  his  personal  property 
Avas  distributed  to  James  Dewitt 
Clinton  Kelly,  who  was  the  only 
surviving  issue  of  the  marriage  with 


Mrs.  Craig.  She  died  in  1836,  and 
the  son  above  mentioned,  called  for 
brevity,  Clinton  Kelly,  died  in- 
testate in  Arkansas,  the  place  of  his 
domicile,  in  1844,  at  the  age  of 
17  years,  without  having  married 
and  without  issue,  leaving,  as  claim- 
ants for  his  property,  his  paternal 
grandfather,  Greenberry  Kelly,  the 
descendants  of  Mary  Eikelburner, 
his  paternal  aunt,  and  his  two 
sisters  of  the  half-blood,  Elizabeth 
and  Emmeline,  the  first  of  whom  is 
the  present  Mrs.  Marsh,  and  the 
second,  Mrs.  INIcGuire.  The  half- 
blood  claimed  the  entire  estate  of 
Clinton  Kelly,  real  and  personal, 
as  his  next  of  kin,  to  the  exclusion 
of  all   other   descendants. 

5  Oliver  v.  Vance,  34  Ark.  567. 


§  554  merwine's  trial,  of  title  to  land.  438 

Where  the  owners  of  land  which  has  been  acquired  by  pur- 
chase, died  intestate  without  descendants,  and  left  a  father, 
a  brother  and  a  sister,  her  heirs  surviving,  the  land  ascends 
to  the  father  for  his  lifetime,  and  then  descends  in  remainder 
to  the  brother  and  sister." 

In  a  controversy  which  involves  the  right  of  the  husband 
to  the  personal  estate  of  his  deceased  wife,  both  being 
citizens  of  the  Creek  nation,  where  there  is  no  showing  as 
to  what  was  the  law  or  custom  of  that  nation,  applicable  to 
that  matter,  it  is  error  to  presume  that  the  common  law 
was  in  force  therein,  and  to  decide  the  controversy  accord- 
ing to  its  rules,  and  where  such  controversy  is  an  action  in 
the  United  States  court,  for  the  Indian  Territory,  the  rule 
of  the  decision,  in  the  absence  of  evidence  as  to  what  the 
Creek  law  is,  is  the  law  of  the  forum  which  is  to  be  found  in 
Mansfield's  Digest  of  the  laws  of  Arkansas,  put  in  force  in 
the  Indian  Territory  by  act  of  Congress  of  ]\Iay  two,  eighteen 
hundred  and  ninety,  and  where  the  common  law  as  to  the  right 
of  the  husband  to  the  wife's  property  has  never  been  adopted, 
or  has  been  abrogated,  the  crops  produced  on  the  wife's  land 
are  the  wife's  property,  although  the  husband  contributed  his 
labor  to  their  production/ 

6  McFarlane  v.  Grober,  70  Ark.  slavery  could  sustain  that  relation. 
371.  After  the  civil  vv^ar,  Gibson,  the  de- 

7  Davison  v.  Gibson,  5G  Fed.  Rep.  fendant  in  the  controversy,  went  to 
443.  The  facts  in  this  case  were  the  Creek  nation  in  1805,  and  he 
these:  Julia  Gibson  was  born  a  and  Julia  reassumed  the  relation  of 
slave  in  the  Creek  nation  in  the  husband  and  wife,  which  relation 
Indian  Territory.  Her  master  sold  continued  until  Julia's  death  on  the 
her  to  a  slave  owner  in  Missouri,  29th  day  of  April,  1891.  Bj^  virtue 
and  took  her  to  that  State,  where  of  her  residence  in  the  Creek  nation 
she  was  held  as  a  slave  until  1854,  at  the  time  of  the  treaty  of  June 
Avhen  her  mother  purchased  her  free-  14,  1866  (14  Stat..  785),  Julia  ac- 
dom  and  brought  her  back  to  the  quired  under  Art.  2  of  that  treaty, 
Creek  nation.  During  the  time  she  all  the  rights  and  privileges  of  the 
was  a  slave  in  Missouri,  she  and  native  citizens  of  the  nation.  Be- 
Edward  Gibson,  who  was  also  a  fore  Gibson  went  to  the  Creek  na- 
slave,  sustained  towards  each  other  tion,  Julia  owned  and  occupied 
the  relation  of  husband  and  wife,  forty  acres  of  land  in  that  country, 
so    far    as    persons    in    a    state    of  ^. 


439  DESCENT    AND    DISTRIBUTION,  §  554 

As  showing  some  light  upon  the  customs  of  the  Indians 
as  to  their  marriage  and  inheritance  laws,  we  here  quote  at 
length  from  the  opinion  in  the  case  from  which  the  para- 
graphs just  preceding  appear  as  the  syllabus  thereof. 

The  published  laws  of  the  Creek  nation  contain  this  pro- 
vision: "The  lawful  or  acknowledged  wife  of  a  deceased  hus- 
band shall  be  entitled  to  one-half  of  the  estate  if  there  are 
no  other  heirs,  and  an  heir's  part  if  there  should  be  other 
heirs,  in  all  cases  where  there  is  no  will.  The  husband 
surviving  shall  inherit  of  a  deceased  wife  in  like  manner." 
(Laws  Muskogee  Nation,  c.  10,  sec.  8.) 

In  Colonel  Hawkins'  history  of  the  Creeks  and  their  cus- 
toms and  laws,  published  in  the  collection  of  the  Georgia 
Historical  Society  (vol.  3,  pt.  1,  p.  74),  it  is  said: 

"Marriage  gives  no  right  to  the  husband  over  the  prop- 
erty of  his  wife,  and  when  they  part,  she  keeps  the  children 
and  the  property  belonging  to  them." 

Colonel  Hawkins  was  at  one  time  a  senator  in  Congress 
from  South  Carolina,  in  1801,  and  was  appointed  by  Mr.  Jef- 
ferson, "Principal  agent  for  Indian  affairs  south  of  the  Ohio," 
and  was  agent  of  the  Creek  Indians  from  1801  to  1816,  and 
continued  to  reside  in  the  Creek  country  until  1825.  His 
official  position  and  long  residence  among  the  Creeks  must 
have  made  him  perfectly  familiar  with  their  customs  and 
laws,  and  it  is  highly  improbable  he  would  have  misrepre- 
sented them.  ]\rr.  Schoolcraft  makes  substantially  the  same 
statement   as   Colonel  Hawkins  in  reference   to   the   customs 


given    to    her    by    her    mother    and  pointed  administrator  of  her  estate, 

brother.     She  also  owned  some  per-  and  brought  this  action  of  replevin 

sonal  property.     She  left  four  chil-  against  Gibson  in  the  United  States 

dren  surviving  her,  two  of  them  not  Court  for  the  Indian  Territory,  for 

the  children  of  the   defendant,  Gib-  the  personal  property,  alleging  that 

son.      After   her  death,    Gibson,   her  it  belonged  to  the  wife  at  the  time 

husband,  claimed  the  personal  prop-  of  her   death,  and   that,    as  her  ad- 

erty  of  the  farm,  and  took  posses-  ministrator,  he  was  entitled  to  pos- 

sion   of   the   same.      J.   P.   Davison,  session  of  the  same, 
one    of    Julia's    children,    was    ap- 


§  554  merwine's  trial  of  title  to  land.  440 

and  laws  on  this  subject,  of  the  Creek  and  some  other  nations 
in  the  Indian  Territory,^ 

That  such  is  the  law  of  the  Cherokee  nation  appears  from 
a  printed  volume  of  the  laws  of  that  nation,  published  by 
authority.  By  an  act  of  the  National  Council  of  the  Cherokee 
nation,  approved  November  9,  1825.'*  That  such  is  the  law 
of  the  Cherokee  nation  appears  from  a  printed  volume  of  the 
laws  of  that  nation,  published  by  authority.  By  an  act  of 
the  National  Council  of  the  Cherokee  nation,  approved  No- 
vember 9,  1825,  it  is  provided  that  where  a  husband  dies 
having  a  wife  and  children,  his  property  shall  be  equally 
divided  among  the  children,  "allowing  the  widow  an  equal 
share  with  the  children,"  and  that  when  a  wife  dies,  "leaving 
a  husband  and  children,  her  property  shall  revert  to  her  hus- 
band and  children  in  the  same  manner." 

The  following  preamble  appears  to  an  act  passed  in  1829 : 
"Whereas,  it  has  long  been  the  established  custom  in  this 
nation,  and  admitted  by  the  courts  as  law,  yet  never  com- 
mitted to  writing,  that  the  property  of  Cherokee  women  after 
their  marriage,  cannot  be  disposed  of  by  their  husbands,  or 
levied  upon  by  an  officer  to  satisfy  the  debt  of  the  husband, 
contracting  contrary  to  her  will  or  consent,  and  disposable 
only  at  her  option,  therefore,"  etc.^° 

And  by  act  approved  October  25,  1843,  it  is  declared: 
"That  it  shall  not  be  lawful  to  expose  at  public  sale  by 
virtue  of  an  execution  obtained  from  any  court  of  this  nation, 
any  property  belonging  to  a  Cherokee  woman  and  citizen  of 
this  nation,  to  satisfy  the  debts  of  her  husband."" 

It  is  very  well  known  that  the  general  customs  and  laws 
of  the  several  nations  in  the  Indian  Territory  relating  to  the 
domestic  relations  are  substantially  the  same.  The  devise 
to  a  trustee  to  protect  the  separate  property  of  the  wife  from 
the  operation  of  the  common  law,  was,  of  course,  unknown 

8  Schoolcraft's      History     of     the  lo  7(7.,  page   142. 
Indian  Tribes,  Part  1,  pa<?e  283.  n  Id.,   page   80. 

9  Laws    of    the    Cherokee    nation, 

page  53.  * 


441  DESCENT    AND   DISTRIBUTION.  §  §  555,  556 

to  the  Indians.  The  wife's  separate  property  under  their 
customs  and  laws,  was  such  as  she  acquired,  either  before  or 
after  marriage,  by  gift,  inheritance,  purchase  or  otherwise; 
and  when  their  customs  and  laws  speak  of  the  wife's  prop- 
erty, it  has  relation  to  all  property  so  acquired  by  the  wife, 
and  not  to  an  equitable  estate  held  by  somebody  in  trust  for 
her,  and  created  by  deed,  devise  or  marriage  settlement.  The 
Indians  had  no  knowledge  of  these  refinements.  We  do  not 
mean  by  anything  we  have  said  to  foreclose  the  court  below 
from  ascertaining  in  any  proper  mode  what  the  custom  or 
law  of  the  Creek  nation  is  on  this  subject.  What  is  decided 
is  that  the  rights  of  the  parties  to  this  suit  must  be  deter- 
mined by  the  custom  or  law  of  the  Creek  nation  applicable 
to  the  case,  and  if  it  shall  not  be  made  to  appear  in  some 
proper  manner  what  that  custom  or  law  is,  then  Chapter  104 
of  ]\Iansfield's  Digest,  before  referred  to,  will  furnish  the 
rule  of  decision.^- 

Sec.  555.    Posthumous  children. 

Posthumous  children  of  the  intestate  shall  inherit  in  like 
manner  as  if  born  in  the  lifetime  of  the  intestate,  but  no 
right  of  inheritance  shall  accrue  to  any  person  other  than 
the  children  of  the  intestate  unless  they  be  born  at  the  time 
of  the  intestate's  death.^^ 

Sec.  556.  Illegitimate  children  inherit  from  the  mother— Mar- 
riage will  legitimatize,  when. 
Illegitimate  children  shall  be  capable  of  inheriting  and 
transmitting  an  inheritance,  on  the  part  of  their  mother,  in 
like  manner  as  if  they  had  been  legitimate  of  their  mother. 
If  a  woman  have  by  a  man  a  child  or  children,  and  he  after- 
wards intermarries  with  her,  and  shall  recognize  such  child 
to  be  his,  they  shall  be  deemed  and  considered  as  legitimate.^* 

12  Davison  v.  Gibson,  56  Fed.  Rep.  3*  Sections  2,524  and  2.525,  Mans- 
446,  5  C.  C.  A.  543.  field's    Digest    of    the    Statutes    of 

13  Section  2,523,  Mansfield's  Digest  Arkansas;  Sees.  1,821  and  1,822, 
of   the   Statutes   of   Arkansas.  Ind.  Ter.  Stat.    (1899). 


§§  557-559         merwine's  trial  of  title  to  land.  442 

Under  this  statute,  it  has  been  decided  that  children  of  the 
same  mother,  whether  legitimate  or  illegitimate,  may  trans- 
mit an  inheritance  to  any  and  all  collateral  relations  on  the 
mother's  side,  who  are  of  her  blood/^ 

Sec.  557.     Children  where  marriage  is  null. 

The  issue  of  all  marriage  deemed  null  in  law  or  dissolved 
by  divorce,  shall  be  deemed  and  considered   as  legitimate.^'' 

Sec.  558.    An  alien  may  inherit. 

In  making  title  by  descent,  it  shall  be  no  bar  to  a  de- 
mandant, that  any  ancestor  through  whom  he  derives  his 
descent  from  the  intestate,  is,  or  has  been  an  alien. ^^ 

Under  the  statutory  law  of  the  State,  aliens  may  take  and 
transmit  land  by  inheritance  or  otherwise;  and  they  could 
at  common  law  take  by  devise.^^ 

Sec.  559.  Where  there  are  no  children  nor  their  descendants, 
no  father,  no  mother  nor  their  descendants, 
or  any  paternal  or  maternal  kindred  capable  of 
inheriting. 

If  there  be  no  children  or  their  descendants,  father,  mother, 
nor  their  descendants,  or  any  paternal  or  maternal  kindred 
capable  of  inheriting,  the  whole  estate  shall  go  to  the  wife 
or  husband  of  the  intestate ;  if  there  be  no  such  wife  or 
husband,  then  the  estate  shall  go  to  the  State.^'' 


1'  Gregley  v.  Jackson,  38  Ark.  487.  i^  Section  2,52G,  Mansfield's  Digest 

The    statute   of    tlie    6th   of    Febru-  of   tlie   Statutes    of    Arkansas;    Sec. 

ary,   1867,  legitimatizing  the  recog-  1,823,  Ind.  Ter.  Stat.   (1899). 

nized      offspring      of      negroes      or  i'^  Section  2,527,  Mansfield's  Digest 

mulattoes,    who    had    cohabited    as  of   the   Statutes    of    Arkansas;    Sec. 

husband  and  wife,  innluded  the  off-  1,824,  Ind.  Ter.  Stat.   (1899). 

spring  of  parents  then  dead  as  well  is  Jones  v.  Minoqiie,  29  Ark.  638. 

as  of  those  living.     Gregley  v.  Jack-  ^9  Section  2,528,  Mansfield's  Digest 

son,  38  Ark.  487.  of   the    Statutes   of   Arkansas;    Sec. 

1,826,  Ind.  Ter.  Stat.   (1899). 


443 


DESCENT   AND   DISTRIBUTION.  §  560 


Sec.  500.    Per  capita  and  per  stirpes. 

If  any  of  the  children  of  an  intestate  be  living,  and  some 
be  dead,  the  inheritance  shall  descend  to  the  children  who 
are  living,  and  to  the  descendants  of  such  children  as  shall 
have  died,  so  that  each  child  who  shall  be  living  shall  inherit 
such  share  as  would  have  descended  to  him  if  all  the  children 
of  the  intestate  who  shall  have  died  leaving  issue  had  been 
living,  so  that  the  descendants  of  each  child  who  shall  be 
dead  shall  inherit  the  same  their  parents  would  have  received 
if  living.-" 

The  rule  of  descent  prescribed  in  the  last  preceding  section 
shall  apply  in  every  case  where  the  descendants  of  the 
intestate,  entitled  to  share  in  the  inheritance,  shall  be  in 
equal  degree  of  consanguinity  to  the  intestate,  so  that  those 
who  are  in  the  nearest  degree  of  consanguinity  shall  take 
the  shares  which  would  have  descended  to  them  had  all  the 
descendants  in  the  same  degree  who  shall  have  died  leaving 
issue,  been  living,  so  that  the  issue  of  the  descendants  who 
shall  have  died  shall  respectively  take  the  shares  which  their 
parents,  if  living,  would  have  received.-^ 

The  first  section  of  the  statute  is  generally  comprehensive, 
and  embraced  all  lands,  whether  ancestral  or  a  new  acquisi- 
tion, subject  to  certain  exceptions  and  qualifications,  here- 
after more  particularly  noticed.  These  exceptions  refer  to 
real  estate  alone.  This  section  also  constitutes  the  table  by 
which  real  estate  is  made  to  descend  and  personal  property 
to  be  distributed.  As  by  its  expressed  language  it  relates  to 
both  real  and  personal  property,  it  was  manifestly  the  design 
of  the  Legislature,  when  there  were  descendants  of  an 
intestate,  to  send  down  both  to  them  per  capita,  if  in  equal 
degree,  and  per  stirpes,  if  in  unequal  degree,  without  any 
regard  to  the  fact  as  to  how  the  property  had  been  acquired. 
And,  as  to  personal  property,  where  there  are  no  descendants 

20  Section  2,.520.  Mansfield's  Dieest  21  Section  2.530.  Mansfield's  Digest 

of   the    Statutes   of   Arkansas;    Sec        of   the    Statutes   of   Arkansas;    Sec. 
1,827    Ind.  Ter.  Stat.   (1899).  1,828,  Ind.  Ter.  Stat.   (1899). 


§  560  merwine's  trial  of  title  to  land.  444 

of  the  intestate,  to  distribute  it  to,  collaterals  will  take  in  the 
same  way  as  descendants  if  there  had  been  any;  that  is  to 
say,  without  any  inquiry  as  to  how  it  was  acquired,  and 
per  capita,  if  in  equal  degree,  and  per  stirpes,  if  in  unequal 
degree.  This  was  manifestly  the  design  of  the  Legislature. 
*  *  *  The  effect  of  the  first  section  is  to  constitute  persons 
who  take  the  personal  property,  whether  per  capita  or  per 
stirpes,  and  whether  of  the  whole  or  half-blood,  the  absolute 
owners.  Nor  is  it  material  whether  these  persons  are  of  the 
paternal  or  maternal,  or  lineal  or  collateral  line.  By  that 
section,  as  already  remarked,  real  and  personal  estate  goes 
in  the  same  channel,  and  if  no  subsequent  provisions  had  been 
introduced  touching  real  estate,  the  precise  bearing  of  which, 
it  is  probable  "the  rivers"  did  not  perceive,  our  labors  would 
have  been  comparatively  easy.-- 

When  the  persons  composing  the  nearest  class  of  kin  to  an 
intestate,  as  fixed  by  Section  2522  of  Mansfield's  Digest,  die 
before  his  death,  the  next  class  in  order  will  thus  be  ad- 
vanced nearer  to  him,  and  the  persons  composing  it  will 
inherit  his  estate  in  their  own  right  as  next  of  kin,  equally, 
if  in  equal  degree,  and  per  stirpes,  if  in  unequal  degree — 
those  equal  in  degree  and  nearest  in  degree  to  the  intestate, 
taking  equal  shares  in  their  own  right,  while  those  of  unequal 
degree,  one  step  further  removed  from  the  intestate,  taking 
only  the  shares  their  ancestors  would  have  taken  if  alive. -^ 


22  Kelly  V.  McGuire,  15  Ark.  504.  seized  in  fee  simple  of  certain  land. 

23  Garret  v.  Bean,  51  Ark.  52.  Held,  that  the  nephews  and  nieces 
"An  intestate  died  without  issue,  stood  in  equal  degree  nearest  to 
and  with  no  ancestors,  brothers  or  the  intestate,  taking  per  capita 
isisters  surviving  him,  leaving  thirty-  equal  shares  of  his  land,  each  taking 
five  nephews  and  nieces — the  chil-  one  thirty-sixth  thereof,  and  the 
dren  of  eight  deceased  brothers  and  grand  nephews  and  nieces  taking 
sisters — and  four  grand  nephews  per  stirpes  the  share  that  their 
and  nieces — the  children  of  his  de-  mother  would  take,  if  alive,  each 
ceased  niece — his  nearest  of  kin.  taking  one-fourth  of  one  thirty- 
At   the   time   of   his   death,   he   was  sixth."    Garret  v.  Bean,  51  Ark.  52. 


445  DESCENT    AND    DISTRIBUTION.  §  561 

Sec.  561.    Ancestral  and  nonancestral  property. 

In  cases  where  the  intestate  shall  die  without  descendants, 
if  the  estate  come  by  the  father,  then  it  shall  ascend  to  the 
father  and  his  heirs;  if  by  the  mother,  the  estate,  or  so  much 
thereof  as  came  by  the  mother,  shall  ascend  to  the  mother 
and  her  heirs.  But  if  the  estate  be  a  new  acquisition,  it 
shall  ascend  to  the  father  for  his  lifetime,  then  descend,  in 
remainder,  to  the  collateral  kindred  of  the  intestate  in  the 
manner  provided  in  this  act ;  and  in  default  of  the  father, 
then  to  the  mother  for  her  lifetime;  then  to  descend  to  the 
collateral  heirs  as  before  provided.'* 

The  following  construction  has  been  given  this  statute : 

"The  manifest  intention  of  the  first  part  of  this  section  (the 
statute  as  it  stood  prior  to  this  present  decision),  was  to  pre- 
serve the  ancestral  estates  in  the  line  of  the  blood  from 
whence  they  came.  It  was  a  partial  adoption  or  recognition 
of  the  common  law  principle  which  invariably  followed  the 
line  of  the  blood.  If  the  estate  comes  to  the  intestate  by  the 
father,  or  as  it  may  be  differently,  and  as  well  expressed, 
on  the  part  of  the  father,  then  it  must  ascend  to  the  father 
and  his  heirs,  thus  overturning  the  inflexible  rule  of  the 
common  law  that  an  estate  could  never  ascend ;  but  should 
rather  escheat  to  the  lord.  And  so,  if  it  comes  by  or  on 
the  part  of  the  mother,  it  goes  to  the  mother  and  her  heirs  in 
exclusion  of  the  heirs  of  the  father.  In  other  words,  it 
remains  in  the  paternal  or  maternal  line  from  whence  it  was 
derived.  The  expressions,  'come  by  the  father,'  or  'mother,' 
or  *on  the  part  of  the  father,'  or  'mother,'  mean  the  same 
thing.  "-= 

They  are  derived  from  the  common  law,  having  an  appro- 
priate technical  meaning,  which  we  must  suppose  the  Legis- 

24  Section  2,531,  Mansfield's  Digest  25  Moffit  v.    Clark,    6   Watts,    and 

of   the   Statutes   of   iVrkansas;    Sec.       Serg.   260. 
1,829,  Ind.  Ter.  Stat.   (1899). 


§  561  merwine's  trial  op  title  to  land,  446 

lature  intended  to  adopt.  They  embrace  not  only  the  father, 
but  all  of  the  ancestors  of  the  father,  both  paternal  and 
maternal.^*' 

"Whenever,"  says  Lord  Coke,  "lands  do  descend  from  the 
part  of  the  mother,  the  heirs  on  the  part  of  the  father  shall 
never  inherit.  And  likewise,  when  lands  descend  from  the 
part  of  the  father,  the  heirs  from  the  part  of  the  mother  shall 
never  inherit."  '^ 

The  tenth  and  twenty-second  sections  must  be  construed 
together,  although  the  exact  expressions  used  in  the  latter 
are  not  contained  in  any  part  of  the  statute.  But  words  of 
equivalent  signification  are  employed  and  they  are  embraced 
in  the  spirit  of  the  twenty-second  section.  Any  other  exposi- 
tion would  render  the  section  entirely  nugatory,  and  we  must 
so  construe  statutes  that  every  part  must  have  its  proper 
effect,  if  possible.  The  expression,  thus,  "come  by  the 
father,"  or  "mother,"  is  not  limited  to  estates  acquired  by 
descent  merely,  but  includes  an  estate  that  comes  to  the 
intestate  by  gift,  devise  or  descent  from  the  parent  referred 
to,  or  from  any  relation  of  the  blood  of  such  parent.  Such 
is  the  letter  and  spirit  of  the  statute.  In  other  words,  there 
are  two  classes  of  cases  provided  for;  one,  where  the  blood 
of  the  person  from  whom  the  estate  came,  whether  it  be  by 
descent,  devise  or  gift,  is  regarded;  and  the  other  where 
the  blood  of  the  intestate  forms  the  stirps  or  stock  of  descent 
without  respect  to  ancestral  blood.  Chancellor  Kent  says 
there  is  a  difference  in  the  laws  of  the  several  States  between 
the  succession  to  an  estate  which  the  intestate  had  acquired 
in  the  course  of  descent  or  by  purchase. 

"If  the  inheritance,"  says  he,  "was  ancestral  and  came  to 
the  intestate  by  gift,  devise  or  descent,  it  passes  to  the 
kindred  who  are  of  the  blood  of  the  ancestor  from  whom  it 
came,  whether  in  the  paternal  or  maternal  line."^* 


26  .Co.  Litt.,  12a.  28  4  Kent,  404. 

27  Co.  Litt.  13o. 


447  DESCENT    AND    DISTRIBUTION.  §  561 

The  portion  of  the  tenth  section  as  to  new  acquisitions 
gives  the  father  and  mother  a  life  estate  only,  with  the 
remainder  to  the  collateral  heirs  of  the  intestate.  Such  as 
the  brothers  and  sisters  and  their  descendants,  and  so  on. 
The  new  acquisition,  or  newly  acquired  estate  does  not  afford 
an  exact  idea  of  the  mode  of  acquisition.  By  the  common 
law,  there  were  two  modes  of  acquiring  an  estate — distin- 
guished by  the  general  appellation  of  descent  and  purchase. 
In  the  first  it  was  by  operation  of  law,  and  in  the  second, 
by  act  or  agreement  of  parties.  Devises  and  gifts  fall  in 
the  latter  class.  An  estate  by  purchase  there  became  in- 
heritable to  the  heirs  general  of  the  purchaser,  first  of  the 
paternal,  and  then  of  the  maternal  line.^® 

It  must  be  understood,  however,  that  a  new  acquisition,  in 
the  sense  intended  by  the  statute,  is  one  the  intestate  has 
acquired  by  his  exertions  and  industry,^"  or  by  will,  or  deed 
from  a  stranger.  In  other  words,  it  is  an  estate  derived  from 
any  source  other  than  descent,  devise  or  gift  from  the  father 
or  mother,  or  any  relative  in  the  paternal  or  maternal  line.^'^ 

If  the  son  should  purchase  land  from  the  father  or  mother 
for  a  valuable  consideration,  it  would  be  a  new  acquisition, 
and  descend  as  such ;  because  nothing  is  received  by  way  of 
bounty  at  the  hands  of  the  ancestors,  which  is  the  case  as  to 
lands  descended  from,  or  devised  or  given  by  them  to  the 
intestate,  and  it  was  thought  reasonable  that  they  should 
remain  in  the  blood  from  which  they  came.  Land  is  to  be 
considered  as  having  come  from,  or  by,  or  on  the  part  of,  the 
father  or  mother,  when  it  comes  by  gift,  devise  or  descent, 
either  mediately,  or  immediately  from  them,  or  from  any 
person  in  their  respective  lines.^- 

Where  lands  are  devised  by  a  maternal  ancestor,  the 
devisee,  though  he  acquires  the  land  by  purchase,  holds  them 

29  2     Blackstone's     Commentaries,  si  Butler  v.  King,  2  Yerg.   116. 
Sec.  243.                                                              32  Kelly  v.  McGuire,  15  Ark.  586. 

30  Brewster  v.   Benedict,    14   Ohio, 
385. 


§  561  merwine's  trial  of  title  to  land.  448 

as  an  ancestral  estate  ex  parte  matcrna;  and,  upon  his  death, 
without  issue,  those  only  of  his  heirs  who  are  of  the  blood 
of  such  maternal  ancestor,  can  inherit.^^ 

"Where  a  father  advances  money  for  the  purchase  of  land 
and  takes  a  deed  in  the  name  of  his  son,  upon  the  death  of 
the  son,  without  issue,  the  lands  vest  in  the  father  in  fee — 
in  such  case  the  lands  came  to  the  son  "on  the  part  of  the 
father,"  by  gift,  and  were  not  a  new  acquisition  by  the 
son,  within  the  contemplation  and  meaning  of  the  statute  of 
descents  in  this  State."* 

Where  the  inheritance  is  ancestral  and  comes  from  the 
father's  side,  then  it  will  go  to  the  line  on  the  part  of  the 
father  from  whence  it  came,  not  in  postponement  but  in 
exclusion  of  the  mother 's  line ;  and  so,  on  the  other  hand,  if 
it  came  from  the  mother's  side,  then  to  the  line  on  the  part 
of  the  mother  from  whence  it  came,  to  the  exclusion  of  the 
father's  line.^^ 

Where  one  dies  without  issue,  seized  of  a  new  acquisition, 
the  mother,  being  the  sole  surviving  parent,  takes  the  estate 
for  life  with  a  remainder  first,  to  the  line  of  the  paternal 
ancestor  in  postponement  of  the  maternal  line,  until  the 
former  becomes  extinct,  and  then,  to  the  maternal  line.^® 

Where  property  given  by  a  paternal  uncle  is  ancestral,  as 
if  it  came  from  the  father,  on  the  death  of  the  donee  intestate, 
it  will  descend  to  his  nearest  relation,  who  are  of  the  blood 
of  the  donor,  to  the  exclusion  of  those  who  are  not  of  his 
blood.  The  donee,  or  the  person  last  entitled  to  possession, 
and  not  the  donor,  remains  the  propositus,  whose  nearest  rela- 
tions of  the  donor's  blood  must  be  traced  for  heirs.^^ 

In  another  case,  where  J.  and  W.  were  brothers,  and  joint 
owners  by  purchase  of  land,  and  J.  died,  leaving  surviving 

33  West  V.  Williams,  15  Ark.  683.  her  father,  and  dies  without  issiie, 

3*  Galloway  v.  Robinson,   19   Ark.  the  land  will  go  to  the  line  on  the 

396.  part  of  the  father  to  the  exclusion 

35  Campbell  v.   Ware,  27  Ark.  66.  of     the     mother's     line.       Beard    v. 

36Magness  v.  Arnold,  31  Ark.  103.  Mosely,  30  Ark.  515. 

When    a   child    inherits    land    from  37  Oliver  v., Vance,  34  Ark.  564. 


449  DESCENT    AND    DISTRIBUTION,  §§  562,  563 

him  his  father  and  mother,  and  brothers  and  sisters,  and 
afterwards  W.  died,  leaving  a  child,  and  soon  afterward  the 
child  died  without  issue,  leaving  its  grandfather  and  grand- 
mother, and  uncles  and  aunts  on  its  father's  side,  it  was 
decided  that  upon  the  death  of  J.  his  interest  in  the  land 
ascended  to  his  father  for  life,  remainder  in  fee  to  his 
brothers  and  sisters;  and  upon  the  death  of  the  child,  its 
interest  in  the  land  ascended  to  its  grandfather  and  grand- 
mother and  uncles  and  aunts  on  the  father's  side,  in  equal 
parts.^* 

Where  a  granddaughter  took  land,  by  descent  from  her 
maternal  grandfather,  and  died  intestate  and  without  issue, 
the  land  goes  to  her  maternal  uncle,  as  the  heir  of  her 
maternal  grandfather,  and  not  to  her  father  as  her  next 
of  kin.^^ 

Where  intestate  left  no  children  and  there  were  no  debts, 
his  real  property  being  a  new  acquisition,  his  widow  is  enti- 
tled to  one-half  of  the  estate,  both  real  and  personal.*" 

Sec.  562.    Where  there  is  default  of  father  and  mother. 

The  estate  of  an  intestate,  in  default  of  a  father  and  mother, 
shall  go,  first,  to  the  brothers  and  sisters  and  their  descend- 
ants of  the  father ;  next,  to  the  brothers  and  sisters  and  their 
descendants  of  the  mother.  This  provision  applies  only  where 
there  are  no  kindred,  either  lineal  or  collateral,  who  stand 
in  a  nearer  relation.*^ 

Sec.  563.    Half-bloods. 

Relations  of  the  half-blood  shall  inherit  equally  with  those 
of  the  whole  blood  in  the  same  degree;  and  the  descendants 
of  such  relatives  shall  inherit  in  the  same  manner  as  descend- 
ants of  the  whole  blood,  unless  the  inheritance  came  to  the 
intestate  by  descent,  devise  or  gift  of  some  one  of  his  an- 


as Kountz  V.  Davis,  34  Ark.  590;  4i  Section  2,532,  Mansfield's  Digest 

West  V.  Williams,   15  Ark.  683.  of   the   Statutes   of   Arkansas;    See. 

s9Coolidge  v.  Burke,  69  Ark.  237.  1,830,  Ind.  Ter.  Stat.    (1899). 
40  Terry  v.  Logan,  75  Ark.  240. 


§§  564-566        merwine's  trial  of  title  to  land.  450 

cestors,  in  which  case,  all  those  who  are  not  of  the  blood  of 
such  ancestor,  shall  be  excluded  from  such  inheritance,*^ 

Sec.  564.    Where  not  provided  by  statute  inheritance  to  go 
as  at  common  law — Several  inherit  as  descend- 
ants in  common. 
In  all  cases  not  provided  for  by  this  act,  the  inheritance 
shall  descend  according  to  the  course  of  common  law. 

Whenever  an  inheritance,  or  a  share  of  an  inheritance, 
shall  descend  to  several  persons,  under  the  provisions  of  this 
act,  they  shall  inherit  as  tenants  in  common  in  proportion  to 
their  respective  shares  or  rights.*^ 

Sec.  565.    Conflict  of  laws. 

The  alienation  and  descent  of  real  property  is  governed  by 
the  laws  of  the  State  or  country  in  which  it  is  situated.** 

Sec.  566.    Construction  of  certain  terms  of  the  statutes  of 
descent. 

The  term  ''real  estate,"  as  used  in  this  act,  shall  be  con- 
strued to  include  every  estate,  interest  and  right,  legal  and 
equitable,  in  lands,  tenements  and  hereditaments,  except  such 
as  are  determined  or  extinguished  by  the  death  of  the 
intestate  seized  or  possessed  of,  in  any  manner  other  than 
by  a  lease  for  years,  and  an  estate  for  the  life  of  another 
person. 

The  term  "inheritance,"  as  used  in  this  act,  shall  be 
understood  to  mean  real  estate  as  herein  defined,  descended 
according  to  the  provisions  of  this  act. 

Whenever,  in  any  part  of  this  act,  any  person  is  described 
as  living,  it  shall  be  understood  that  he  was  living  at  the 
time  of  the   death  of  the  intestate   from  whom  the   descent 

42  Section  2,533,  Mansfield's  Digest  43  Section  2,534,  Mnnsfield's  Digest 

of   the   Statutes   of   Arkansas;    Sec.       of   the    Statutes   of   Arkansas;    Sec. 
1,831,  Ind.  Ter.  Stat.   (1899).  1,832,  Ind.  Ter.  Stat.   (1899). 

44  Apperson    v.    Bolton,    29    Ark. 
418. 


451  DESCENT    AND    DISTRIBUTION.  §§  567,  568 

came,  and  when  any  person  is  described  as  having  died,  it 
shall  be  understood  that  he  died  before  the  intestate. 

The  expression  used  in  this  act,  "where  the  estate  shall 
have  come  to  the  intestate  on  the  part  of  the  father,"  or 
"mother,"  as  the  case  may  be,  shall  be  construed  to  include 
every  case  where  the  inheritance  shall  have  come  to  the 
intestate  by  gift,  devise  or  descent  from  the  parent  referred 
to,  or  from  any  relative  of  the  blood  of  such  parent.*^ 

Sec.  567.  Heir  at  law  may  be  made  by  declaration  in  writ- 
ing— Declaration  must  be  recorded,  or  same  shall 
have  no  force. 

When  any  person  may  desire  to  make  any  person  his  heir 
at  law,  it  shall  be  lawful  to  do  so  by  declaration  in  writing 
in  favor  of  such  person,  to  be  acknowledged  before  any 
judge,  justice  of  the  peace,  clerk  of  any  court  or  before  any 
court  of  record  in  this  State. 

Before  such  declaration  shall  be  of  force  or  effect,  it  shall 
be  recorded  in  the  county  where  the  said  declarant  may 
reside,  or  in  the  county  where  the  person  in  whose  favor  such 
declaration  is  made,  may  reside.**' 

Sec.  588.  Advancement  by  settlement  of  portion  to  child — 
How  reckoned  and  effect  of — When  not  equal  to 
share  of  estate — Value  of  such  advancement,  how 
ascertained — Maintenance,  education  and  the  like 
not  be  taken  as  advancement,  when. 
If  any  child  of  an  intestate  shall  have  been  advanced  by 

him,  in  his  lifetime,  by  settlement,  a  portion  of  the  real  or 

45  Sections  2,540,  2,541,  2,542  and  of  distribution,  would,  in  the  event 

2,543,     Mansfield's     Digest     of     the  of   death   and  intestacy,  be  entitled 

Statutes    of    Arkansas;    Sec.    1,838,  to  the  personal  estate  of  the  person 

1,839,    1,840    and    1,841,    Ind.    Ter.  of    whom    they    are    mentioned    as 

Stat.    (1899).      Where    there   is    no  heirs.     Johnson  v.  Knights,  53  Ark. 

context    to     explain     it,     the    word  255. 

"heirs,"   if   used   in   a   legal   instru-  *^  Sections   2544  and  2545,  Mans- 

ment    to    designate    the    persons    to  field's    Digest    of    the    Statutes    of 

whom      the      personalty      devolves,  Arkansas;     Sees.     1,832    and    1,833, 

means  those  who,  under  the  statute  Ind.  Ter.  Stat.    (1899). 


§  568  merwine's  trial  of  title  to  land.  452 

personal  estate,  or  both  of  them,  the  value  thereof  shall  be 
reckoned,  for  the  purpose  of  its  succession,  only  as  part  of 
the  real  and  personal  estate  of  such  intestate  descendible  to 
his  heirs,  and  be  distributed  to  his  next  of  kin,  according  to 
law;  and  if  such  advancement  be  equal  or  superior  to  the 
amount  of  the  share  which  such  child  would  be  entitled 
to  receive  of  the  real  and  personal  estate  of  the  deceased, 
as  herein  reckoned,  then  such  child  and  his  descendants 
shall  be  excluded  from  any  share  of  the  real  and  personal 
estate  of  the  intestate/^ 

In  cases  where  such  advancement  is  not  equal  to  the  share 
to  which  such  child  or  relative,  and  his  descendants,  shall  be 
entitled  to  receive,  they  shall  be  entitled  to  receive  so  much 
of  the  real  and  personal  estate  as  shall  be  sufficient  to  make 
all  the  shares  of  the  heirs  in  such  real  and  personal  estate  and 
advancement  to  be  as  nearly  equal  as  possible.*^ 

The  value  of  any  real  or  personal  estate  so  advanced  shall 
be  deemed  to  be  that,  if  any,  which  was  acknowledged  by  the 
person  receiving  the  same,  by  any  receipt,  in  writing,  specify- 
ing the  value;  if  no  such  written  evidence  exists,  then  such 
value  shall  be  estimated  according  to  its  value  at  the  time 
of  the  advancing  of  such  money  or  property."*^ 

The  maintaining,  educating  or  giving  money  to  a  child  or 
heir,  without  a  view  to  a  portion  or  settlement  in  life,  shall 
not  be  an  advancement  within  the  meaning  of  this  act.^" 

47  Section  2,536,  Mansfield's  Digest  49  Section  2,538,  Mansfield's  Digest 
of   the   Statutes   of   Arkansas;    Sec.       of   the   Statutes   of   Arkansas;    See. 

1.834,  Ind.  Ter.  Stat.   (1899).  1,836,  Ind.  Ter.  Stat.    (1899). 

48  Section  2,537,  Mansfield's  Digest  so  Section  2,539,  Mansfield's  Digest 
of   the    Statutes    of    Arkansas;    Sec.       of    the    Statutes    of    Arkansas;    Sec. 

1.835,  Ind.  Ter.  Stat.    (1899).  1,837,  Ind.  Ter.  Stat.   (1899). 


453 


DESCENT    AND   DISTRIBUTION. 


ARKANSAS   STATUTE   OF   DESCENT— DOWER   AND 
ASSIGNMENT   THEREOF. 


SECTION 

569.  Widow's  dower   in  lands. 

570.  Widow  of  an  alien  to  have  the 

same  dower  as  if  her  hus- 
band had  Deen  a  native  born 
citizen. 

571.  Dower   in   case  of   exchange  of 

land. 

572.  Mortgage    of    husband    not    to 

afi'ect    widow's   dower. 

573.  Otherwise       where       mortgage 

given   for   purchase  money. 

574.  Widow's  right  in  surplus  after 

discharging  mortgage  for  pur- 
chase money. 

575.  Widow   not    entitled    to    dower 

in  lands  held  by  her  husband 
as  mortgagee. 
570.  In   case   of   divorce   or   miscon- 
duct  of    wife,    she    shall   not 
be  endowed. 

577.  Conveyance  or  provision  in  lieu 

of   dower. 

578.  Plow  assent  given  in  such  case. 

579.  Assent  of   wife   to   bar    dower, 

when. 

580.  Cases   in  which   she    may  elect 

to  accept  provision  or  take 
dower. 

581.  When  provision  in  lieu  of  dower 

forfeited. 

582.  Widow's  dower  not  to  be  barred 

by  the  conveyance  of  the  hus- 
band or  any  judgment  or 
decree  against  him. 

583.  May     tarry     in     the     mansion 

house,   how   long. 

584.  Duty     of     commissioners     ap- 

pointed to  lay  off  dower. 

585.  Dower  in  lands' and  personalty 

when  the  husband  dies  leav- 
ing no  children. 

586.  Widow's   dower,   descends  how. 

587.  Devise   of   real   estate  by   hus- 

band deemed  in  lieu  of 
dower. 


SECTION 

588.  Widow  has  her  election  in  sucli 

cases — Proceedings. 

589.  Widow    may    relinquish    dower 

and  take  absolutely  a  child's 
share  of   the   estate. 

590.  Laws   investing  certain  estates 

in  widow  and  children  not 
repealed. 

591.  Widow  shall  be  endowed  in  all 

the  lands  sold  in  the  lifetime 
of  the  husband  without  her 
consent. 

592.  Duty  of  heirs  to  assign  dower. 

593.  How  widow  may  proceed  when 

dower  not  assigned  in  due 
time — Form  of  petition  for 
dower. 

594.  When  petition  stands  for  hear- 
ing— Order   thereon. 

Constructive   service. 

Verification  of  pleadings  not 
required. 

Who  may  be  admitted  to  de- 
fend. 

Party  may  contest  right  of 
petitioner  by  answer — ^Ques- 
tions,   how    tried. 

Commissioners  to  be  appointed 
and  their  duties. 

Report  of  commissioners. 

Proceedings   on  report. 
602.  Order     when     lands     will     not 
admit   of    division. 

Widow  may  recover  and  defend 
possession    of    her    dower. 

Heirs'  alienation  of  land  not 
to  affect  widow's  dower. 

Of  the  crop  growing  on  tbe 
land  assigned  as  dower  at 
widow's  death. 

606.  Costs   to  be  apportioned,   how. 

607.  Procedure    for    assignment    of 

dower — For  assignment  of 
dower  by  heirs. 


595. 
596. 

597. 

598. 


599. 


600. 
601. 


COS. 


604. 


605. 


§§569-571  merwine's  trial  of  title  to  land. 


4541 


SECTION 

608.  Form  for  the  petition   for   the 

assignment  of  dower. 

609.  Form  for  answer  of  heirs  join- 

ing   in    the    prayer    of    the 
petition. 

610.  Decree  of  court  awarding  dower 

to  widow. 

611.  The   writ   of   dower    issued   by 

the  clerk  of  the  sheriiT. 


SECTION 

G12.  The  return  of  the  sheriff  of  his 
proceedings  and  of  the  com- 
missioners   assigning    dower. 

613.  The  decree  of  the  court  con- 
firming the  report  of  the  com- 
missioners assigning  dower. 

G13a.  Curtesy  under  Arkansas  law 
— Tenant  by  curtesy  defined. 


Sec.  569.    Widow's  dower  in  lands. 

A  widow  shall  be  endowed  of  the  third  part  of  all  the 
lands  whereof  her  husband  was  seized  of  an  estate  of  in- 
heritance at  any  time  during  the  marriage,  unless  the  same 
shall  have  been  relinquished  in  legal  form.^ 

Sec.  570.    Widow  of  an  alien  to  have  the  same  dower  as  if 
her  husband  had  been  a  native  born  citizen. 

The  widow  of  an  alien  shall  be  entitled  to  dower  of  the 
estate  of  her  husband  in  the  same  manner  as  if  such  alien 
had  been  a  native  born  citizen  of  this  State.- 

Sec.  571.    Dower  in  case  of  exchange  of  land. 

If  a  husband  seized  of  an  estate  of  inheritance  in  lands 
exchange  it  for  other  lands,  his  widow  shall  not  have  dower 
of  both,  but  shall  make  her  election  to  be  endowed  of  the 
lands  given  or  of  those  taken  in  exchange ;  and  if  such  elec- 


1  Section  2,571,  Mansfield's  Digest 
of  the  Arkansas  statutes;  Sec.  1,856, 
Ind.  Ter.  Stat.  (1899);  Indian 
Land  Laws  (Bledsoe),  Sec.  660; 
Kerby  v.  Ventrese,  36  Ark.  368; 
Tate  V.  Jay,  31  Ark.  576;  Penning- 
ton V.  Yell,  11  Ark.  219;  Webb  v. 
Smith,  40  Ark.  17;  Watson  v. 
Billings,  32  Ark.  278;  Livingston 
V.  Ck)chran,  33  Ark.  296;  Cockrell 
V.  Armstrong,  31  Ark.  580;  Pillow 
V.  Wade,  31  Ark.  678;  County  v. 
Marbling,    30    Ark.    17;    Dewey    v. 


Montgomery,  28  Ark.  256;  Tognier 
V.  Christian,  27  Ark.  306 ;  Apperson 
V.  Bolton,  29  Ark.  418;  Rockafellow 
V.  Pay,  40  Ark.  69;  McWhorter  V. 
Roberts,  40  Ark.  283;  Hewitt  v. 
Cox,  55  Ark.  225;  15  S.  W.  1,026; 
Weaver  v.  Push,  62  Ark.  51;  34 
S.  W.  256;  Horton  v.  Hilliard,  58 
Ark.  298,  24  S.  W.  242. 

2  Section  2,572,  Mansfield's  Di- 
gest; Sec.  1,860,  Ind.  Ter.  Stat- 
(1899);  Sec,  661,  Bledsoe's  Indian 
Land  Lav/s. 


455  DESCENT    AND    DISTRIBUTION.  §§  572-574 

tion  be  not  evinced  by  the  commencement  of  proceedings  to 
recover  her  dower  of  the  lands  given  in  exchange  within  one 
year  after  the  death  of  her  husband,  she  shall  be  deemed 
to  have  elected  to  take  her  dower  in  the  lands  received  in 
exchange.^ 

Sec.  572.    Mortgage  of  husband  not  to  affect  widow's  dower. 

Where  a  person  seized  of  an  estate  of  inheritance  in  lands 
shall  have  executed  a  mortgage  of  such  estate  before  mar- 
riage, his  widow  shall  nevertheless  be  entitled  out  of  the 
lands  mortgaged  as  against  every  person  except  the  mort- 
gagee and  those  claiming  under  him.* 

Sec.  573.  Otherwise  where  mortgage  given  for  purchase 
money. 
Where  a  husband  shall  purchase  land  during  coverture,  and 
shall  mortgage  his  estate  in  such  lands  to  secure  the  payment 
of  the  purchase  money,  his  widow  shall  not  be  entitled  to 
dower  out  of  such  lands  as  against  the  mortgagee  or  those 
claiming  under  him,  although  she  shall  not  have  united  in 
such  mortgage;  but  she  shall  be  entitled  to  her  dower  as 
against  all  other  persons.^ 

Sec.  574.  Widow's  right  in  surplus  after  discharging  mort- 
gage for  purchase  money. 
When  in  such  case  the  mortgagee,  or  those  claiming  under 
him,  shall,  after  the  death  of  the  husband  of  such  widow, 
cause  the  land  mortgaged  to  be  sold,  either  under  a  power 
contained  in  the  mortgage,  or  by  virtue  of  a  decree  of  a 
court   of  chancery,    and   any   surplus   shall   remain   after  the 

(1899);      Bledsoe's      Indian     Land  5  Section     2,575,     Mansfield's     Di- 

Laws,  Sec.  eeS.  gest;     Sec.     1,863,    Ind.    Ter.    Stat. 

3  Section  2,573;  Mansfield's  Di-  (1899);  See.  664,  Bledsoe's  Indian 
gest;  Sec.  1,861,  Ind.  Ter.  Stat.  Land  Laws;  Bernie  v.  Maur,  29  Ark. 
(1899);      Bledsoe's      Indian      Land  591. 

Laws,  Sec.  662. 

4  Section     2,574,    Mansfield's     Di- 
gest;    Ind.    Ter.    Stat.,    Sec.    1,862 


§§  575-578       merwine's  trial  of  title  to  LxVnd.  456 

payment  of  the  moneys  due  on  such  mortgage  and  the  costs 
and  charges  of  the  sale,  such  widow  shall  be  entitled  to  the 
interest  or  income  of  one-third  of  such  surplus  for  her  life 
as  her  dower.'' 

Sec.  575.    Widow  not  entitled  to  dower  in  lands  held  by  her 
husband  as  mortgagee. 
A  widow  shall  not  be  endowed  of  lands  convej'-ed  to  her 
husband    by   way    of   mortgage,    unless   he   has    acquired   an 
absolute  estate  therein  during  the  marriage.'^ 

Sec.  576.     In  case  of  divorce  or  misconduct  of  wife,  she  shall 
not  be  endowed. 
In  case  of  divorce,  dissolving  the  marriage  contract  for  the 
misconduct  of  the  wife,  she  shall  not  be  endowed.^ 

Sec.  577.     Conveyance  or  provision  in  lieu  of  dower. 

When  an  estate  in  lands  shall  be  conveyed  to  a  person 
and  his  intended  wife,  or  to  such  intended  wife  alone,  or  to 
any  person  in  trust  for  such  person  and  his  intended  wife, 
or  in  trust  for  such  wife  alone,  for  the  purpose  of  erecting  a 
jointure  for  such  intended  wife,  and  with  her  assent,  such 
jointure  shall  be  a  bar  to  any  right  or  claim  for  dower  of 
such  wife  in  any  land  of  the  husband.^ 

Sec.  578.     How  assent  given  in  such  case. 

The  assent  of  the  wife  to  such  jointure  shall  be  evinced, 
if  she  be  of  full  age,  by  her  becoming  a  party  to  the  con- 

6  Section  2,576,  Mansfield's  Di-  (1899);  Sec.  667,  Bledsoe's  Indian 
gest;  Sec.  1,864,  Ind.  Ter.  Stat.  Land  Laws;  Wood  v.  Wood,  59 
(1899);    Sec.   665,   Bledsoe's   Indian       Ark.  441,  27   S.  W.  641. 

Land  Laws.  9  Section     2,579,     Mansfield's     Di- 

7  Section     2,577,     Mansfield's    Di-       gest;     Sec.     1,857,    Ind.    Ter.    Stat. 
Sec.     1,S65,    Ind.    Ter.    Stat.        (1899);    Sec.   668,   Bledsoe's  Indian 


(1899);    Sec.   666,   Bledsoe's   Indian       Land  Laws. 
Land   Laws. 

8  Section     2,578,     Mansfield's     Di- 
gest;    Sec.     1,856,    Ind.    Ter.    Stat. 


457  DESCENT    AND    DISTRIBUTION,  §§  579,  580 

veyance  by  which  it  shall  be  settled;  if  she  be  an  infant,  by 
her  joining  with  her  father  or  guardian  in  such  conveyance.^** 

Sec.  579.    Assent  of  wife  to  bar  dower,  when. 

Any  pecuniary  provision  that  shall  be  made  for  the  benefit 
of  an  intended  wife,  and  in  lieu  of  dower,  shall,  if  assented 
to  by  such  wife,  as  above  provided,  be  a  bar  to  any  right  or 
claim  of  dower  of  such  wife  in  all  the  lands  of  her  husband." 

Sec.  580.  Cases  in  which  she  may  elect  to  accept  provision 
or  take  dower. 

If  before  her  marriage,  but  without  her  assent,  or  if,  after 
her  marriage,  lands  shall  be  given  or  assured  for  the  jointure 
of  a  wife,  or  a  pecuniary  provision  be  made  for  her  in  lieu 
of  dower,  she  shall  make  her  election  whether  she  will  take 
such  jointure  or  pecuniary  provision,  or  whether  she  will  be 
endowed  of  the  land  of  her  husband,  but  she  shall  not  be 
entitled  to  both.^" 

If  land  be  divided  to  a  woman,  or  a  pecuniary  or  other 
provision  be  made  for  her  by  will  in  lieu  of  dower,  she  shall 
make  her  election  whether  she  wall  take  the  land  so  devised 
or  the  provision  so  made,  or  whether  she  will  be  endowed  of 
the  lands  of  her  husband. ^^ 

When  a  woman  shall  be  entitled  to  an  election  under  either 
of  the  two  last  preceding  sections,  she  shall  be  deemed  to 
have  elected  to  take  such  jointure,  devise  or  pecuniary  pro- 
vision, unless  within  one  year  after  the  death  of  her  husband, 
she  shall  enter  on  the  lands  to  be  assigned  to  her  for  her 

10  Section  2,580,  Mansfield's  Di-  12  Section  2,582,  Mansfield's  Di- 
gest;    Sec.    1,8G8,    Ind.    Ter.    Stat.       gest;     Sec.     1,870,    Tnd.    Ter.    Stat, 

(1899);    Sec.   669,   Bledsoe's  Indian  (1899);    Sec.   071,  Bledsoe's   Indian 

Land  Laws.  Land  Laws. 

11  Section  2,581,  Mansfield's  Di-  i3  Section  2,583,  Mansfield's  Di- 
gest;    Sec.     1,869,    Ind.    Ter.    Stat.  gest;     Sec.    1,871,    Tnd.    Ter.    Stat. 

(1899);    Sec.   670,  Bledsoe's   Indian        (1899);    Sec.   672,   Bledsoe's   Indian 
Land  Laws,  Land  Laws. 


§  §  581-583  MERWINE  'S   TRIAL   OF   TITLE   TO   LAND.  458 

dower,  or  commence  proceedings  for  the  recovery  or  the  as- 
signment thereof.^* 

Sec.  581.    When  provision  in  lieu  of  dower  forfeited. 

Every  jointure,  devise  and  pecuniary  provision  in  lieu  of 
dower,  shall  be  forfeited  by  the  woman  for  whose  benefit  it 
shall  be  made,  in  the  same  cases  in  which  she  would  forfeit 
her  dower;  and,  upon  such  forfeiture,  any  estate  so  conveyed 
for  jointure,  and  every  pecuniary  provision  so  made,  shall 
immediately  vest  in  the  person  or  his  legal  representatives,  in 
whom  they  would  have  vested,  upon  the  termination  of  her 
interest  therein,  by  the  death  of  such  woman." 

Sec.  582.    Widow's  dower  not  to  be  barred  by  the  conveyance 

of    the    husband    or    any    judgment    or    decree 

against  him. 

No  act,  deed  or  conveyance,  executed  or  performed  by  the 

husband    without    the    assent    of    his    wife,    evinced    by    the 

acknowledgment  thereof  in  the  manner  acquired  by  law,  shall 

pass  the   estate   of  a  married  woman ;   and  no  judgment  or 

decree   confessed    or   recovered    against   him    and    no    laches, 

default,   covin   or  crime   of  the  husband  shall  prejudice  the 

right  of  his  wife  to  her  dower  or  jointure,  or  preclude  her 

from  the  recovery  thereof,  if  otherwise  entitled  thereto.^® 

Sec.  583.    May  tarry  in  mansion  house,  how  long. 

A  widow  may  tarry  in  the  mansion  or  chief  dwelling 
house  of  her  husband  for  two  months  after  his  death,  whether 
her  dower  be  sooner  assigned  her  or  not,  without  being  liable 

"Section    2,584,    M.insfield's    Di-  (1899);    Sec.   674,  Bledsoe's  Indian 

gest;     Sec.     1,872,    Tnd.    Ter.    Stat.  Land  Laws. 

(1899);    Sec.   673,   Bledsoe's  Indian  le  Section    2.586,    Mansfield's    Di- 

Land   Laws;    Goodwin   v.    Goodwin,  gest;     Sec.    1,874,    Ind.    Ter.    Stat. 

56  Ark.  532,  20  S.  W.  353;  Pumphry  (1899);    Sec.   675,  Bledsoe's   Indian 

V.  Pumphry,  52  Ark.  193,  12  S.  W.  Land  Laws. 
390. 

15  Section    2,585,    Mansfield's    Di- 
gest;    Sec.     1,873,    Ind.    Ter.    Stat. 


459  DESCENT    AND   DISTRIBUTION.  §  §  584,  585 

for  any  rents  for  the  same;  and,  in  the  meantime,  she  shall 
have  a  reasonable  sustenance  out  of  the  estate  of  her  hus- 
band/^ 

If  the  dower  of  any  widow  is  not  assigned  and  laid  off  to 
her  within  two  months  after  the  death  of  her  husband,  she 
shall  remain  and  possess  the  mansion  or  chief  dwelling  house 
of  her  late  husband,  together  with  the  farm  thereto  attached, 
free  of  all  rent,  until  her  dower  shall  be  laid  off  and  assigned 
to  her.^^ 

Sec.  584.    Duty  of  commissioners  appointed  to  lay  off  dower. 

In  all  assignments  of  dower  to  any  widow,  it  shall  be  the 
duty  of  the  commissioners  who  may  be  appointed  to  lay 
off  the  dower  (if  the  estate  will  permit  without  essential 
injury)  so  to  lay  off  the  dower  in  the  lands  of  the  deceased 
husband  that  the  usual  dwelling  of  the  husband  and  family 
shall  be  included  in  such  assignment  of  dower  to  the  widow/® 

The  commissioners  appointed  to  lay  off  dower  in  the 
lands  of  the  deceased  husband  shall,  at  the  request  of  the 
widow  to  be  endowed,  lay  off  the  same  on  any  part  of  the 
lands  of  the  deceased,  whether  the  same  shall  include  the 
usual  dwelling  of  the  husband  and  family  or  not;  provided, 
the  same  can  be  done  without  essential  injury  to  such  estate.^''^ 

Sec.  585.    Dower  in  lands  and  personalty  when  the  husband 
dies  leaving  no  children. 
If  a  husband  die,  leaving  a  widow  and  no  children,  such 
widow  shall  be  endowed  of  the  one-half  of  the  real  estate  of 

"Section  2,587,  Mansfield's  Di-  i9  Section  2,589,  Mansfield's  Di- 
gest; Sec.  1,875,  Tnd.  Ter.  Stat.  gest;  Sec.  1,877,  Tnd.  Ter.  Stat. 
(1899);  Sec.  676,  Bledsoe's  Indian  (1899);  Sec.  678,  Bledsoe's  Indian 
Land  Laws.  Land  Laws. 

18  Section    2.588;    Mansfield's   Di-  20  Section    2,590,    Mansfield's    Di- 
gest;    Sec.     1,876,    Ind.    Ter.    Stat.  gest;     Sec.    1,878,    Ind.    Ter.    Stat. 
(1899);    Sec.  677,   Bledsoe's  Indian  (1899);    Sec.   679.   Bledsoe's  Indian 
Land   Laws;    Horton   v.   Hilton,    58  Land  Laws;   Horton  v.  Hilliard,  58 
Ark.    208,    24   S.   W.    242;    Winters  Ark.   298,  24   S.   W.   242. 
V.    Davis,    51    Ark.    335,    11    S.    W. 
420;    Trumble    v.    James,    40    Ark. 
393;  Mock  v.  Pleasant,  34  Ark.  63. 


§§  586-588        merwine's  trial  of  title  to  land.  460 

which  the  husband  died  seized,  and  one-half  of  the  personal 
estate  absolutely  and  in  her  own  right.-^ 

Sec.  586.    Widow's  dower  at  her  death,  descends  how. 

At  the  death  of  any  widow  who  has  dower  in  land,  such 
property  shall  descend  in  accordance  with  the  will  of  the 
deceased  husband,  or,  if  the  husband  died  intestate,  then  to 
descend  in  accordance  with  the  laws  for  the  distribution  of 
intestate's  estates.-- 

Sec.  587.    Devise  of  real  estate  to  the  wife  by  the  husband 
shall  be  deemed  in  lieu  of  dower. 

If  any  husband  shall  devise  and  bequeath  to  his  wife  any 
portion  of  his  real  estate  of  which  he  died  seized,  it  shall  be 
deemed  and  taken,  in  lieu  of  dower,  out  of  the  estate  of  such 
deceased  husband,  unless  such  testator  shall,  in  his  will,  de- 
clare otherwise.-^ 

Sec.  588.    Widow  has  her  election  in  such  cases;  proceedings. 

In  cases  of  provision  made  by  will  for  widow,  in  lieu  of 
dower,  such  widow  shall  have  her  election  to  accept  the 
same  or  be  endowed  of  the  lands  and  personal  property  of 
which  her  husband  died  seized.'* 

If  a  widow,  for  whom  provision  has  been  made  by  will, 
elect  to  be  endowed  of  the  lands  and  personal  property  of 
which  her  husband  died  seized  he  shall  convey,  by  deed  of 
release  and  quitclaim,  to  the  heirs  of  such  estate,  the  lands 
so  devised  to  her  and  bequeathed,  which  deed  shall  be  ac- 

21  Section  2,592,  Mansfield's  Di-  (1899);  Sec.  683,  Bledsoe's  Indian 
gest;  Sec.  1,880,  Ind.  Ter.  Stat.  Land  Laws;  Apperson  v.  Bolton, 
(1899);    Sec.   681,   Bledsoe's   Indian       25  Ark.  418. 

Land  Laws.  24  Section    2,595,    Mansfield's    Di- 

22  Section  2,593,  Mansfield's  Di-  gest;  Sec.  1,883,  Ind.  Ter.  Stat, 
gest;  Sec.  1,881,  Ind.  Ter.  Stat.  (1899);  Sec.  684,  Bledsoe's  Indian 
(1899);    Sec.   682,  Bledsoe's   Indian  Land  Laws. 

Land  Laws. 

23  Section    2,594,    Mansfield's    Di- 
gest;   Sec.    1,882,    Ind.    Ter.    Stat. 


461 


DESCENT    AND   DISTRIBUTION.  §  589 


knowledged  or  proven  and  recorded  as  other  deeds  for  real 
estate  are  required  to  be  acknowledged  or  proved  and  re- 
corded." 

Such  renunciation  of  the  devise  or  bequest  by  deed  as 
provided  for  in  the  last  preceding  section  shall  be  deemed  a 
sufficient  notice  of  the  renunciation  of  the  interest  of  such 
widow  in  all  the  benefits  she  might  claim  by  such  will  in  the 
lands  of  such  deceased  husband.-'' 

Such  renunciation  by  deed  shall  be  executed  within  eighteen 
months  after  the  death  of  such  husband,  or  the  widow  will 
be  deemed  to  have  elected  to  take  the  devise  and  bequest 
contained  in  such  will.^^ 

Sec.  589.  Widow  may  relinquish  dower  and  take  absolutely  a 
child's  share  of  the  estate. 

The  widow  of  any  deceased  person,  who  shall  file  in  the 
office  of  the  clerk  of  the  court  of  probate,  or  with  the  probate 
court  of  the  proper  county,  a  relinquishment  of  her  right  of 
dower  in  and  out  of  the  estate  of  her  deceased  husband, 
shall  be  entitled  to  receive  of  the  estate  of  which  her  said 
husband  died  seized  and  possessed,  whether  real,  personal  or 
mixed,  a  portion  or  share  thereof,  absolutely  in  her  own  right, 
equal  to  that  of  a  child,  which  shall  be  set  aside  and  delivered 
to  her  as  now  provided  by  law  for  dower  -^ 

Said  relinquishment  shall  be  in  writing  and  acknowledged 
before  the  clerk  or  some  justice  of  the  peace,  and  filed  within 

25  Section  2.506,  Mansfield's  Di-  (1899):  Sec.  687,  Bledsoe's  Indian 
gest;     Sec.     1,884,    Ind.    Ter.    Stat.       Land  Laws. 

(1899);    Sec.   685,  Bledsoe's  Indian  =8  Section    2,599,    :\ransfield's    Di- 

Land  Laws.  gest;     Sec.     1,887,    Ind.    Ter.    Stat. 

26  Section  2,597,  Mansfield's  Di-  (1899);  Sec.  688,  Bledsoe's  Indian 
gest;     Sec.     1,885,    Ind.    Ter.    Stat.  Land    Laws;     Mack    v.    Johns,    27 

(1899);   Sec.   686,   Bledsoe's   Indian  S.  W.  231,  held  unconstitutional  by- 
Land  Laws.  Supreme    Court    of    Arkansas;    but 

27  Section  2.598,  Mansfield's  Di-  query,  whether  not  valid  for  this 
gest;     Sec.    1,886,    Ind.    Ter.    Stat.  State. 


§§590-592        MER wine's  trial  op  title  to  land.  462 

sixty  days  after  the  grant  of  letters  of  administration  upon 
the  estate  of  the  decedent.-'' 

Sec.  590.    Laws  vesting  certain  estates  in  widow  and  chil- 
dren not  repealed. 

Nothing  herein  contained  shall  be  so  construed  as  to  repeal 
any  law  vesting  estates  worth  less  than  three  hundred  dollars 
in  the  widow  and  children  of  deceased  persons.^** 

Sec.  591.     Widow  shall  be  endowed  in  all  the  lands  sold  in 
the  lifetime  of  the  husband  without  her  consent. 

A  widow  shall  be  endowed  of  lands  sold  in  the  lifetime  of 
her  husband  without  her  consent  in  legal  form  against  all 
creditors  of  the  estate.^^ 

Sec.  592.    Duty  of  heirs  to  assign  dower. 

It  shall  be  the  duty  of  the  heirs  at  law  of  any  estate  of 
which  the  widow  is  entitled  to  dower,  to  lay  off  and  assign 
such  dower  as  soon  as  practicable  after  the  death  of  the 
husband  of  such  widow.^- 

If  such  dower  assigned  by  the  heirs  at  law,  be  accepted  by 
the  widow,  the  heirs  at  law  shall  make  a  statement  of  such 
assignment,  specifying  what  lands  have  been  assigned,  and 
the  acceptance  of  such  widow  shall  be  indorsed  thereon; 
which  statements  and  specification  of  dower  and  acceptance 

29  Section  2,600,  Mansfield's  Di-  32  Section  2,603 ;  Mansfield's  Di- 
gest; Sec.  1,888,  Ind.  Ter.  Stat.  gest;  Sec.  1,891,  Ind.  Ter.  Stat. 
(1899);  Sec.  689,  Bledsoe's  Indian  (1899);  Sec.  692,  Bledsoe's  Indian 
Land  Laws.  Land  Laws;    Reed  v.  Ash,   30   Ark. 

30  Section  2,601,  Mansfield's  Di-  775;  Hills  v.  Mitchtll,  5  Ark.  608; 
gest;  Sec.  1,889,  Ind.  Ter.  Stat.  Morrow  v.  Menefee,  5  Ark.  629; 
(1899);  Sec.  690,  Bledsoe's  Indian  but  see  Menifee  v.  Menifee,  8  Ark. 
Land  Laws.  9;    see,   also,    Ex   parte    Crittenden, 

Bisection    2,602,    Mansfield's    Di-       10  Ark.  341;   Trueble  v.  James,  40 
Sec.     1,890,    Ind.    Ter.    Stat.       Ark.    393;    Jacks   v.   Dyer,  31    Ark. 


(1899);    Sec.  691,   Bledsoe's   Indian       334. 
Land   Laws;    Tate  v.   Jay,   31    Ark. 
576. 


463  DESCENT    AND   DISTRIBUTION.  §§593,594 

thereof  shall  be  proved  or  acknowledged  by  both  parties  and 
filed  with  and  recorded  by  the  clerk  of  the  court  of  probate, 
which  shall  then  be  sufficient  assignment  of  dower  and  shall 
bar  any  further  demand  for  dower  in  the  property  specified 
in  the  statement  of  dower.^-^ 

If  the  heir  to  any  estate  be  a  minor,  he  shall  act,  in  the 
assignment  of  dower,  by  his  guardian.^* 

Sec.  593.  How  widow  may  proceed  when  dower  not  assigned 
in  due  time — Form  of  petition  for  dower. 
If  dower  be  not  assigned  to  the  widow  within  one  year 
after  the  death  of  her  husband,  or  within  three  months  after 
demand  made  therefor,  she  may  file  in  the  court  of  probate, 
or  in  the  clerk's  office,  in  vacation,  a  written  petition  in  which 
a  description  of  the  lands  in  which  she  claims  dower,  the 
names  of  those  having  an  interest  therein,  and  the  amount 
of  such  interest  therein  shall  be  briefly  stated  in  ordinary 
language  with  a  prayer  for  the  allotment  of  dower;  and, 
thereupon  all  persons  interested  in  the  property  shall  be  sum- 
moned to  appear  and  answer  the  petition  on  the  first  day  of 
the  next  term  of  the  court.^^ 

Sec.  594.     When  petition  stands  for  hearing;  order  thereon. 

Upon  a  summons  being  served  upon  all  who  have  an  interest 
in  the  property  ten   days  before  the   commencement  of  the 


33  Section    2,604;    Mansfield's    Di-  (1899);      Bledsoe's     Indian     ".and 

gest;     Sec.    1,892,    Ind.    Ter.    Stat.  Laws,   695;    McWhorter  v.  Roberts, 

(1899);    Sec.  693,   Bledsoe's   Indian  40    Ark.    283;    Livingston    v.    Cocli- 

Land  Laws.  ran,     33     Ark.     290;      Stidham     v. 

3*  Section  2,605,  Mansfield's  Di-  Matthews,  29  Ark.  650;  Crittenden 
gest;  Sec.  1,893,  Ind.  Ter.  Stat.  v.  Woodruff,  11  Ark.  83;  Webb  v. 
(1899);  Sec.  694,  Bledsoe's  Indian  Smith,  40  Ark.  17;  Danley  v.  Dan- 
Land  Laws.  ley,  22  Ark.  263;    Falls  v.   Wright, 

35  Section    2,606,    Mansfield's    Di-  55  Ark.  562,  18  S.  W.  1,044. 
gest;     Sec.    1,894,    Ind.    Ter.    Stat. 


§§  595-598        MER wine's  trial  of  title  to  land.  464 

term,   the   court   may   make   an   order   for   the   allotment   of 
dower  in  accordance  with  the  law  of  dower.^^ 

Sec.  595.     Constructive  service. 

Parties  interested  may  be  constructively  summoned  as  pro- 
vided by  law  in  other  cases.^^ 

Sec.  596.    Verification  of  pleadings  not  required. 

No  verification  shall  be  required  to  the  petition  or  answer.^' 

Sec.  597.    Who  may  be  admitted  to  defend. 

If  the  petition  be  filed  against  infants,  married  women  or 
persons  of  unsound  mind,  the  guardian,  committee  or  hus- 
band may  appear  and  defend  for  them  and  protect  their 
interest;  and,  if  they  do  not  the  court  shall  appoint  some 
discreet  person  for  that  purpose.^'' 

Sec.  598.    Party  may  contest  right  of  petitioner  by  answer — 
Questions,  how  tried. 

If  any  person  summoned  as  provided  in  section  twenty-six 
hundred  and  seven  desires  to  contest  the  right  of  the  peti- 
tioner, or  the  statements  in  the  petition  he  shall  do  so  by  a 
written  answer,  and  the  questions  of  law  and  fact,  thereupon 
arising  shall  be  tried  and  determined  by  the  court  upon  the 
petition,  answer,  exhibits  and  other  testimony.*" 

36  Section  2,607,  Mansfield's  Di-  38  Section  2,609,  Mansfield's  Di- 
gest; Sec  1,S95,  Ind.  Ter.  Stat.  gest;  Sec.  1,897,  Ind.  Ter.  Stat. 
(1899);  Sec.  696,  Bledsoe's  Indian  (1899);  Sec.  697,  Bledsoe's  Indian 
Land  Laws;  Hewitt  v.  Cox,  55  Ark.  Land   Laws. 

225,  15  S.  W.  1,026.  17  S.  W.  873;  39  Section    2,670,    Mansfield's    Di- 

Neal   V.   Robertson,   55   Ark.   79,    17  gest;     Sec.    1,698,     Ind.    Ter.    Stat. 

S.  W.  587.  (1899);    Sec.  699,   Bledsoe's   Indian 

37  Section    2,608,    Mansfield's    Di-  Land  Laws. 

gest;     Sec.     1,896,    Ind.    Ter.    Stat.           4o  Section    2.611,  Mansfield's    Di- 

(1899);    Sec.   697,   Bledsoe's  Indian       gest;     See.     1,899,  Ind.    Ter.    Stat, 

Land  Laws.                                                  (1899);    Sec.  700,  Bledsoe's  Indian 

Land  Laws. 


465  DESCENT    AND    DISTRIBUTION.  §§  599-603 

Sec.  589.     Commissioners  to  be  appointed  and  their  duties. 

The  court  shall,  in  all  cases,  when  it  orders  and  decrees 
dower  to  any  widow,  appoint  three  commissioners,  of  the 
vicinity,  who  shall  proceed  to  the  premises  in  question,  and, 
by  survey  and  measurement,  lay  off  and  designate  by  proper 
metes  and  bounds,  the  dower  of  such  widow  in  accordance 
with  the  decree  of  court/^ 

Sec.  600.    Report  of  commissioners. 

Such  commissioners  shall  make  a  detailed  report  of  their 
proceedings  to  the  next  term  of  the  court.*- 

Sec.  601.     Proceedings  on  report. 

Upon  such  report  being  returned  the  court  may  confirm  or 
set  the  same  aside,  or  remand  it  to  the  commissioners  for 
correction.  If  approved  by  the  court,  said  report  shall  be 
entered  of  record  and  be  conclusive  upon  the  parties.*^ 

Sec.  602.     Order  when  lands  will  not  admit  of  division. 

In  cases  where  lands  or  tenements  will  not  admit  of  divi- 
sion, the  court  being  satisfied  of  that  fact,  or  on  the  report 
of  the  commissioners  to  that  effect,  shall  order  that  such 
tenements  or  lands  be  rented  out,  and  that  one-third  part 
of  the  proceeds  be  paid  such  widow,  in  lieu  of  her  dower  in 
such  lands  and  tenements.** 

Sec.  603.     Widow  may  recover  and  defend  possession  of  her 
dower. 

If  the  land  assigned  and  laid  off  to  any  widow  be  deforced 
from   her  possession,   she   shall  have   her  action   for   the   re- 

41  Section  2,612,  Mansfield's  Di-  43  Section  2,614,  Mansfield's  Di- 
gest; Sec.  1,980,  Tnd.  Ter.  Stat.  gest;  Sec.  1,902,  Tnd.  Ter.  Stat. 
(1899);  Sec.  701,  Bledsoe's  Indian  (1899);  Sec.  703,  Bledsoe's  Indian 
Land  Laws.  Land  Laws. 

42  Section  2.613,  Mansfield's  Di-  44  Section  2.615,  Mansfield's  Di- 
gest;    Sec.    1,901,    Ind.    Ter.    Stat.  gest;     Sec.    1,903,    Tnd.    Ter.    Stat. 

(1899);    Sec.   702,   Bledsoe's  Indian       (1899);    Sec.   704,   Bledsoe's   Indian 
Land  Laws.  Land  Laws. 


§§  604-607         merwine's  trial  of  title  to  land.  466 

covery  of  the  possession  thereof,  with  double  damages  for 
such  deforcement ;  or  she  may  sue  for  the  damages  alone,  and 
recover  double  the  actual  damages  sustained,  from  time  to 
time,  until  she  be  put  in  possession  of  her  dower,  held  by 
such  deforcer  or  detainer.*^ 

Sec.   604.     Heir's   alienation   of  land  not  to  affect  widow's 
dower. 

If  the  heir  alien  lands  of  which  a  widow  is  entitled  to 
dower,  she  shall  still  be  decreed  her  dower  in  such  lands  so 
aliened  in  whose  hand  soever  the  lands  may  be.*" 

Sec.  605.     Of  the  crop  growing  on  land  assigned  as  dower  at 
widow's  death. 
A  widow,  may  bequeath  the  crop  in  the  ground  of  the  land 
held  by  her  in  dower  at  the  time  of  her  death.     If  she  die 
intestate,  it  shall  go  to  her  administrator.*^ 

Sec.  606.     Costs  to  be  apportioned,  how. 

The  costs  of  allotting  dower  shall  be  apportioned  among  the 
parties  in  the  ratio  of  their  interests,  and  the  costs  arising 
from  any  contest  of  fact  or  law  shall  be  paid  by  the  parties 
adjudged  to  be  in  the  wrong.*^ 

Sec.  607.    Procedure  for  assignment  of  dower — Form  for  as- 
signment of  dower  by  heirs. 
ASSIGNIMENT  OF  DOWER. 

Whereas,  ,  late  of  ,  County,  State  of 

Oklahoma,  died  intestate,  leaving ,  his  widow  and , 

and ,  his  only  children  and  heirs  at  law;  and, 


45  Section  2,616,  Mansfield's  Di-  47  Section  2,618,  Mansfield's  Di- 
gest; Sec.  1,904,  Tnd.  Ter.  Stat.  gest;  Sec.  1,906,  Tnd.  Ter.  Stat, 
(1899);  Sec.  705,  Bledsoe's  Indian  (1899);  Sec.  707,  Bledsoe's  Indian 
Land  Laws.  Land    Laws. 

40  Section    2,677,    Mansfield's    Di-  48  Section    2,679,    Mansfield's    Di- 

Sec.     1,905,    Ind.    Ter.    Stat.  gest;     Sec.    1,907,    Ind.    Ter.    Stat. 


(1909);    Sec.  706,  Bledsoe's  Indian       (1899);    Sec.  708,  Bledsoe's  Indian 
Land  Laws.  Land  Laws. 


467  DESCENT   AND    DISTRIBUTION  §  607 

Whereas,  the  said  , and  ,  are  desirous 

of  assigning  dower  to  said ,  widow  of  the  said ,  in 

and  to  all  of  the  lands  of  which  the  said  ,  deceased,  was 

seized  of  an  estate  of  inheritance  during  his  lifetime ; 

Now,  Therefore,  we,  ,  and  ,  the  only 

heirs  at  law  of  ,  deceased,  in  consideration  of  the  prem- 
ises, do  by  these  presents,  assign,  transfer  and  set  over  to  the 

said ,  wddow  of  the  said ,  deceased,  as  and  for  her 

dower  in  the  lands  of  which  said  decedent  was  seized  of  an 

estate   of  inheritance   during   his  marriage   vnth   said   , 

to-wit:  (Here  specifically  describe  real  estate  to  be  set  apart.) 

Witness  our  hands  this day  of ,  19 — . 


State  of  Oklahoma, County,  ss. : 

Before  me,  the  undersigned,  a  notary  public  in  and  for  said 

county    and    State,    appeared    in    person   ,    and 

^  and ,  widow  of ,  deceased,  to  me  known  to 

be  the  identical  persons  whose  names  appear  upon  the  within 
and  foregoing  instrument  of  conveyance  of  dower,  and  the  ac- 
ceptance thereof,  and  acknowledged  that  they  executed  the  same 
for  the  consideration  and  purposes  therein  set  forth. 

In  Testimony  Whereof,  I  have  on  this day  of , 

19 — ^  set  my  hand  and  affixed  my  seal  of  office. 


My  commission  expires .  Notary  Piihlic. 

ACKNOWLEDGMENT  BY  WIDOW  OF  ASSIGNMENT 
OF  DOWER. 

Comes  now  ,  as  such  widow  of  ,  deceased,  and 

hereby  accepts  the  above  and  foregoing  assignment  of  dower  to 
her. 

In  Witness  Whereof,  I  have  hereunto  affixed  my  hand  on 

this day  of ,  19 — , 

f 
Widow  of  ,  Deceased. 


§§  608, 609         merwine's  trial  of  title  to  land.  468 

Sec.  608.    Form  for  the  petition  for  the  assignment  of  dower. 

State  of  Oklahoma, County,  ss. : 

In  the Court. 

,  Plaintiff, 

vs.  No. . 

and ,  Defendmits. 

PETITION. 

Comes  now  the  plaintiff,  and,  for  her  cause  of  action  herein, 

alleges  that  on  the day  of ,  19—,  she  was  married 

to  one  ,  who  departed  this  life  on  the  day  of 

,  19 — ,  and  that  the  said  ,  during  their  said  cover- 
ture,  was  seized  of  an   estate  in   inheritance  in   the  following 

described   real   estate,   in  County,   State   of   Oklahoma, 

to-wit:  (Here  specifically  describe  same),  and  said  plaintiff  has 
never  heretofore  relinquished  her  right  of  dower  therein;  that 

the  said , and ,  are  the  children  of  plaintiff 

and  deceased,  and  are  the  joint  owners  of  said  real  estate,  subject 
to  said  dower  right,  and  that,  by  reason  of  the  premises,  she  is 
entitled  to  have  set  off  and  assigned  to  her  reasonable  dower  in 
the  real  estate  above  described. 

Wherefore,  plaintiff  prays  that  her  reasonable  dower  in  said 
real  estate  may  be  decreed  her  and  an  assignment  thereof  made 
in  accordance  with  law,  and  for  such  other  and  further  relief 
to  which  she  mav  be  entitled.* 


Sec.  609.    The  answer  of  heirs  joining  in  prayer  for  dower. 

State  of  Oklahoma, County,  ss. : 

,  Plaintiff,  In  the Court. 

vs.  No. . 

and ,  Dcfe7idants. 

ANSWER. 

Come  now  the  defendants  herein,  and,  for  their  answer,  say 
that  they  admit  each  and  every  allegation  in  said  petition  con- 
tained and  join  in  the  prayer  thereof. 

*  The  petition  and  the  answer  in  proceedings  for  the  assignment  of 
dower  need  not  be  verified.  The  praecipe,  summons  and  return  by 
the  sheriff  are  the  same  as  in  other  actions. 


469  DESCENT    AND   DISTRIBUTION.  §  610 

Wpierepore,  said  defendants  pray  the  court  to  protect  their 
interests  in  said  real  estate  and  that  they  may  go  hence  with 
their  costs.  ~"  • 

Sec.  610.    Decree  of  court  awarding  dower  to  plaintiff. 

State  of  Oklahoma, County,  ss. : 

,  Plaintiff, 


vs.  No. . 

and ,  Defendants. 

DECREE   AWARDING   DOWER. 
This  cause,  coming  on  for  hearing  on  the  petition  and  the 
answer  thereto,  and  was  submitted  to  the  court  upon  the  evi- 
dence and  the  argument  of  counsel,  and,  upon  due  consideration 

thereof,  the  court  finds  that  the  said was,  in  his  lifetime 

and  during  said  coverture,  seized  of  an  estate  in  fee  simple  in 
and  to  the  real  estate  described  in  the  petition;  that  the  said 

died  intestate  at  ,  ,  on  the  day  of 

,  19—;  that  the  said,  ,  plaintiff,  is  the  widow  of 

,  deceased,  and  that  she  is  entitled  to  have  her  dower 

in  said  real  estate  and  premises  assigned  and  set  off  to  her  as 
prayed  for  in  her  said  petition. 

It  is   Therefore   ordered,   adjudged   and  decreed,   that   the 

said  plaintiff, ,  be  endowed  of  one-third  part  of  said  real 

estate  described  in  the  petition,  and  that  a  writ  issue  to  the 

sheriff  of  said  County,   commanding  him  that  by  the 

oaths  of  ,  and  ,  three  judicious  and  disin- 
terested men  of  the  vicinity  and  who  are  not  of  kin  to  any  of 
the  parties  hereto,  and  who  are  appointed  commissioners  for  that 

purpose,  to  set  off  and  assign  such  dower  to  said  plaintiff, , 

according  to  law,  and  that  of  their  proceedings,  the  said  com- 
missioners  and  sheriff  make    due   return   without   unnecessary 

delay.  — "  "' 

Judge  of  said  Court. 


§§  611,612         merwine's  trial  of  title  to  land.  470 

Sec.  611.    The  writ  of  dower  issued  by  the  clerk  to  the  sheriff. 

State  of  Oklahoma, County,  ss. : 

Whereas,  in  a  certain  petition  for  doAver  now  pending  in  our 

court,  wherein is  plaintiff,  and , and 

,  are  defendants,  the  real  estate  set  forth  in  the  petition 

is  as  follows,  to-wit:  (Describe  same)  in  which  said  premises 
plaintiff  is  entitled  to  dower. 

We,  Therefore,  command  you  that  by  the  oaths  of  , 

. and ,  three  men  of  the  vicinity,  you  cause  the  one 


equal  third  part  of  said  real  estate  to  be  set  off  and  assigned  to 

the  said  ,  as  and  for  her  dower  estate  therein,  and  that 

you  certify  your  proceedings  herein  to  this  court,  without  un- 
necessary delay  and  bring  this  order  with  you. 

Witness,  ,  clerk  of  the  said  court,  at  . 

Oklahoma,  this day  of ,  19 — . 


Clerk. 

Sec.  612.    The  return  of  the  sheriff  of  his  proceedings  of  com- 
missioners assigning  dower. 

State  of  Oklahoma, County,  ss. : 

In  the  County  Court. 

,  Plaintiff, 

vs.  No. . 

and ,  Defendants. 

SHERIFF'S  RETURN  OF   THE  ASSIGNMENT  OF 
DOWER  BY  COMMISSIONERS. 

As  commanded  by  this  writ,  I  have,  by  the  oaths  of  r 


ancl  ,   three  judicious,  disinterested  men  of  the 

vicinity,  and  not  of  kin  to  any  of  the  parties  to  this  action,  and 
who  were  duly  appointed  by  the  court  for  that  purpose,  caused 

to  be  set  off  and  assigned  to  the  said  plaintiff,  ,  as  her 

dower  estate,  so  much  of  the  lands  and  tenements  of  the  de- 
ceased as  is  mentioned  and  described  in  the  report  of  the  com- 


471 


DESCENT    AND   DISTRIBUTION. 


§613 


missioners  hereto  attached,  marked  Schedule 
report  is  hereby  made  a  part  of  this  return. 
Given  under  my  hand  this day  of  — 


and  which 


19—. 


Sheriff. 

SCHEDULE  A.— COMMISSIONERS'   REPORT. 

According  to  the  command  of  the  writ  for  the  assignment  of 
dower,  issued  in  this  case,  and  on  the  call  of  the  sheriff  of  said 
county,  we,  the  undersigned  commissioners  of  the  vicinity,  and 
not  of  kin  to  any  of  the  parties,  after  being  first  duly  sworn, 
and  upon  actual  view  of  the  premises,  so  set  off  and  assign  to 
the  said  ,  plaintiff,  as  and  for  her  dower  estate,  the  fol- 
lowing described  real  estate  in County,  Oklahoma,  to-Tvit : 

(Here  describe  it.) 

Given  under  our  hands  this  — 


day  of 


-,  19-. 


Commissio  n  e  rs . 

Sec.  613.    Decree  confirming  the  report  of  the  commissioners 
assigning  dower. 

State  of  Oklahoma, County,  ss. : 

In Court. 

,  Plaintiff, 


vs. 


Nto. 


and 


Defendanis. 


DECREE   CONFIRMING  COM:\riSSIONERS'  ASSIGN- 
MENT  OF    DOWER. 

This  cause  came  on  to  be  heard  this  day  of  


19 — ,  the  same  being  a  regular  day  of  the 


Term,  19- 


of  this  court,  upon  the  application  of  plaintiff  to  confirm  the 
report  of  the  commissioners  assigning  dower,  and  the  same  was 
presented  to  the  court  on  the  evidence,  and  was  argued  by 
counsel,  and,  upon  due  consideration  whereof,  the  court  finds 
said  report  regular  and  in  due  form  of  law  and  as  provided  by 
the  statute  in  such  cases  made  and  provided. 


§  613a  merwine's  trial  op  title  to  land.  472 

It  is  Therefore  ordered,  adjudged  and  decreed  that  said 
return  of  the  sheriff  and  said  report  of  said  commissioners  as  to 
the  assignment  of  said  dower  be,  and  the  same  are,  hereby- 
approved  and  confirmed,  and  that  said  plaintiff  hold  said  real 
estate  as  and  for  her  dower  in  the  lands  of  decedent,  and  that 
the  costs  herein  be  taxed  to . 


Judge  of  said  Court. 

Sec.  613a.    Curtesy  under  Arkansas  law — Tenant  by  curtesy 
defined. 

There  is  no  statute  on  the  subject  in  the  State  of  Arkansas, 
and  the  common  law  rules  as  to  this  estate  w^ere  in  existence 
in  that  State.     The  courts  of  the  State  have  always  so  held. 

By  the  common  law,  tenancy  by  curtesy  is  an  estate  for  life, 
created  by  the  act  of  the  law.  When  a  man  marries  a  woman 
seized  at  any  time  during  coverture  of  an  estate  of  inher- 
itance in  severalty,  in  coparcenary  or  in  common,  and  hath 
issue  by  her  born  alive,  and  which  might  by  possibility  in- 
herit the  same  estate  as  heir  to  the  wife,  and  the  wife  dies 
in  the  lifetime  of  the  husband,  he  holds  the  land  during  his 
life,  and  it  is  immaterial  whether  the  issue  be  living  at  the 
time  of  the  seizin,  or  at  the  death  of  the  wife,  or  whether  it 
was  born  before  or  after  seizin.*^ 

Four  things  are  requisite  to  the  estate  by  curtesy,  viz. :  mar- 
riage, actual  seizin  of  the  wife,  issue  and  death  of  the  wife.^" 

The  wife,  according  to  the  English  law,  must  have  been 
seized  in  fact  and  deed,  and  not  merely  a  seizin  in  law  of 
an  estate  of  inheritance,  to  entitle  the  husband  to  his  curtesy.^^ 

The  circumstances  of  this  country  have  justly  required 
some  qualification  of  this  strict  letter  of  the  law  relative  to  a 
seizin  in  fact  by  the  wife;  and,  if  she  be  owner  of  waste, 
uncultivated  lands,  not  held  adversely,  she  is  deemed  seized 
in  fact,  so  as  to  entitle  the  husband  to  his  curtesy.     The  title 

49McDaniel  v.  Grace,  15  Ark.  483,  5o  lUd. 

4  Kent.  Com.  289;    1  Hilliard,  110;  si  McDaniel  v.  Grace,  15  Ark.  483, 

Neely  v.  Lancaster,  47  Ark.   175.  4  Kent.  Com.  30. 


473  DESCENT    AND   DISTRIBUTION.  §  613a 

to  such  property  draws  to  it  the  possession ;  and  that  con- 
structive possession  continues  in  judgment  of  law,  until  ad- 
verse possession  is  clearly  made  out.^-  This  right  of  curtesy 
by  the  husband  in  the  estate  of  the  wife  has  been  extended 
by  modern  decisions.  It  is  now  settled  in  equity,  that  he  shall 
have  curtesy  of  a  trust  as  well  as  in  legal  estate;  of  an 
equity  of  redemption,  a  contingent  use,  or  money  to  be  laid 
out  in  land ;  but  not  in  a  pre-emption  right  of  the  wife  in  the 
public  lands  of  the  United  States.^^ 

A  conveyance  of  the  estate  by  curtesy  made  in  due  form 
of  law  will  give  the  grantee  in  such  deed  the  right  to  the 
possession  of  the  land  during  the  life  of  the  husband."*  The 
estate  is  subject  to  execution.°^  It  must,  however,  yield  to 
the  superior  homestead  rights  of  the  wife's  minor  children.^*^ 

The  estate  under  the  Arkansas  statutes  in  force  in  the 
IndianTerritory  has  been  recognized  by  the  Federal  courts. 
"We  here  quote  from  a  very  recent  decision  on  the  subject: 

"Did  the  right  of  curtesy  exist  in  this  case?  Curtesy  is  the 
estate  to  which  by  common  law  a  man  is  entitled  on  the 
death  of  his  wife  in  the  lands  or  tenements  of  which  she  was 
seized  in  possession  in  fee  simple  or  in  tail  during  cover- 
ture, provided  they  had  lawful  issue  born  alive  which  might 
have  been  capable  of  inheriting  the  estate,  and  it  attaches  to 
the  wife's  equitable  as  well  as  her  legal  estates  of  inher- 
itance." 

By  act  of  Congress,  May  2,  1890,  26  Stat.  L.,  81,  Chap- 
ter 20  of  Mansfield's  Digest  of  the  Laws  of  Arkansas,  was 

52  McDanicl  v.  Grace,  15  Ark.  483,  ^5  Stanley  v.  Boham,  52  Ark.  354; 

4  Kent.  Com.  30;  Jackson  v.  Sellick,  but  see  Hampton  v.   Cook,   64   Ark. 

—    Johns.    262;    Green   v.    Siter,    8  353,  holding  otherwise. 

Cranch,    229;     Davis    v.    Mason,     1  56  Thompson  v.   King,   54   Ark.  9. 

Peters     503.  Where  issue  was  born  since  the  Con- 

53McDaniel    v.     Grace,     15     Ark.  stitution    of    1874,    the    effect   of    a 

460;   Ogden  v.  Ogden,  60  Ark.  70.  sale  of  the  husband's  curtesy  in  his 

54  Morris    v.    Edmonds,    43    Ark.  wife's    land,    subject    to    the    home- 

427.     The  rights  of  the  children  of  stead  rights  of   his  minor   children, 

the   wife   are   not   affected   by    such  is  to  carry  his  interest,  but  no  right 

deed.     Wear,  etc.,  v.  Smith,  66  Ark.  of     enjoyment     of     the     homestead 

PQQ  during    the    minority    of    the    chil- 
dren.    Ibid. 


§  613a  merwine's  trial  of  title  to  land.  474 

extended  over  Indian  Territory,  by  which  the  common  law 
was  made  applicable,  but  under  a  proviso  in  the  act  did  not 
then  apply  to  the  Indians  of  an  Indian's  estate. 

By  act  of  Congress  it  was  provided: 

"Provided,  further,  That  on  and  after  the  first  day  of  Jan- 
uary, eighteen  hundred  and  ninety-eight,  the  United  States 
courts  in  said  Indian  Territory,  shall  have  original  and  con- 
clusive jurisdiction  and  authority  to  try  and  determine  all 
civil  causes  in  law  and  equity  thereafter  instituted,  and  all 
criminal  causes  for  the  punishment  of  any  offenses  committed 
after  the  first  day  of  January,  eighteen  hundred  and  ninety- 
eight,  by  any  person  in  said  territory  and  the  United  States 
commissioners  in  said  Territory  shall  have  and  exercise  the 
powers  and  jurisdiction  already  conferred  upon  them  by 
existing  laws  of  the  United  States,  as  respects  all  persons  and 
property  in  said  Territory,  and  the  laws  of  the  United  States 
and  the  State  of  Arkansas  in  force  in  the  Territory  shall 
apply  to  all  persons  therein,  irrespective  of  race,  said  courts 
exercising  jurisdiction  thereof  as  now  conferred  upon  them 
in  the  trial  of  like  causes. ' '  ^^ 

It  was  also  provided  by  act  of  Congress: 

"That  on  and  after  the  passage  of  this  act  the  laws  of  the 
various  tribes  or  nations  of  Indians  shall  not  be  enforced  at 
law  or  in  equity  by  the  courts  of  the  United  States  in  the 
Indian  Territory. ' '  ^^ 

By  the  same  act  all  the  tribal  courts  were  abolished.  There- 
upon, the  common  law,  as  theretofore  conditionally  extended 
over  Indian  Territory,  was  made  applicable  to  all  persons 
irrespective  of  race,  and  the  estate  by  the  curtesy  attached 
in  favor  of  the  husband  to  all  lands  of  which  the  wife  became 
seized  during  coverture  upon  the  arising  of  the  conditions 
upon  which  that  estate  is  based  at  common  law.^® 

57  Act  June  7,  1S97,  30  Stat.  59  Armstrong  v.  Wood,  195  Fed. 
L.  62.  Rpp-   137;   see,  also,  Sec.  66,  Indian 

58  Section    26,     Curtis    Act ;     Act  Land   Laws,    by   Bledsoe. 
June  28,   1898,  30   Stat.  L.   504. 


475 


DESCENT    AND   DISTRIBUTION. 


5.    TITLE  TO  REAL  ESTATE  BY  LAST  WILL 
AND  TESTAMENT. 


SECTION 

G14.  Who  may  make  a  will. 
615.  Mental  capacity. 
61i0.  Insane   delusion. 

617.  Undue    influence,    duress,   men- 

ace, fraud. 

618.  Lndue  influence,  execution,  evi- 

dence of. 

619.  Undue     influence — The     admis- 

sibility of  evidence  of  testa- 
tor's declarations  as  to  undue 
influence — Declarations  of  the 
beneficiary. 

620.  The    burden    of    proof    in    case 

of  testamentary  incapacity. 

621.  Constrviction    of    statute    as    to 

notice — Limitation  of  action 
as  to  heir. 

622.  Rights   of   married  woman. 

623.  What  may  be  disposed  of  by  a 

will. 

624.  Will   may  be   made   to   anyone 

capable  of  taking. 

625.  Nuncupative  will. 

626.  Mutual  will. 

627.  A     conditional     will     may     be 

denied  probate. 

628.  Execution  of  wills — Olographic 

wills. 

629.  Nuncupative  will   need   not  be 

in  writing. 

630.  Witnessing  a  will. 

631.  Codicil— EflFect  of. 

632.  The  law  of  what  place  governs 

as  to  a  will. 

633.  The   law   must  be    followed    as 

to  the  execution  of  a  will. 

634.  Change  of  domicile. 

635.  Where  a  will  may  be  deposited. 

636.  How    such    will    may    be    de- 

livered. 

637.  When    the    county    judge    may 

open  will. 

638.  Proof  of  lost  or  destroyed  will. 

639.  Revocation  of  wills. 

640.  Proof  of  destruction  of  will. 

641.  Effect  of  partial  erasure. 


SECTION 

642.  Revocation    of    will    in    dupli- 

cate. 

643.  Revocation    of    subsequent   will 

— Etfl'ect  of. 

644.  Effect   of   subsequent  will. 

645.  Marriage    of    and     issue    after 

will  made. 

646.  Marriage     of     woman     revokes 

will. 

647.  Sale      of      devised      property — 

Effect  of. 

648.  Incumbrance  not  a  revocation. 

649.  Partial   disposal   after  will. 

650.  When  such  act  revokes  will. 

651.  Codicils. 

652.  Succession     supplements     will, 

when. 

653.  Devisee's  descendants  take  prop- 

erty. 

654.  Gift  to  a  witness  void. 

655.  Gift    to    a    witness    not    void, 

when. 

656.  Probate  of  will  not  prevented, 

when. 

657.  Property    acquired    after    will 

made. 

658.  Intention   of    testator   governs. 

659.  Will  excludes  all  oral  declara- 

tions. 

660.  Rules  of  interpretation. 

661.  Instruments  construed  together. 

662.  Irreconcilable  parts. 

663.  Distinct    devises    not     affected 

by  inaccuracies. 

664.  Ambiguities,  how   explained. 

665.  Words  taken  in  ordinary  sense. 

666.  Rule  of  construction. 

667.  Validity  of  will  favored. 

668.  lechnical   words. 

669.  Words  of   inheritance. 

670.  Devise  in  general  terms. 

671.  Residue  of  real  estate. 

672.  Residue   of   personalty. 

673.  Effect  of  certain  terms. 

674.  Terms  mentioned  are  words  of 

donation. 


§§614,615       mekwine's  triai.  of  title  to  land. 


476 


SECTION 

675.  Postponement   of   possession. 

G76.  Class  includes  all. 

677.  Conversion  of  realty. 

678.  Unborn  child  included. 

679.  Imperfect  description  corrected, 

how. 

680.  Testamentary  dispositions  vest 

at  death. 

681.  Can  be  divested,  when. 

682.  Death   of   devisee — Effect  of. 

683.  Interest     of     persons     in     re- 

mainder. 

684.  Conditional  disposition  defined. 

685.  Condition  precedent  defined. 

686.  Unknown   unavoidable   event — 

Effect  of. 

687.  Substantial     compliance     suffi- 

cient. 

688.  Condition  subsequent  defined. 

689.  Devise   to  more   than  one   per- 

son. 

690.  Gifts  do  not  reduce  legacies. 

691.  Legacies  classified. 

692.  Property  chargeable  with  pay- 

ment of  debts. 

693.  Order  in  which  property  applied 

to  debts. 

694.  For  payment  of  legacies. 


SECTION 

695.  Preferred  legacies. 

696.  Class  only  affected. 

697.  Representative  may  sell. 

698.  Proved  devise  impairs  deed  by 

heir. 
099.  Succession    to    limited    devises. 

700.  Income   after   death. 

701.  Legacy,    etc.,   may   be   satisfied 

before  death. 

702.  Legacies  due  in  one  year. 

703.  Interest  on  legacies. 

704.  Intention  controls. 

705.  Unnamed  executor. 

706.  Authority  void,  when. 

707.  Power      of      executor     begins, 

when. 

708.  Limitation  of  power. 

709.  Will    includes   codicil. 

710.  Law  of  place  governs,  when. 

711.  Liability  of  devisees  and   lega- 

tees. 

712.  Will     may    be    recorded    with 

like  effect  as  a  deed. 
712a.  Manner  in  which  will  may  be 
made   by    full   blood    Indian 
of  the  five  civilized  tribes. 
712b.  Will — ^Choctaw     and     Chicka- 
saw 


Sec.  614.    Who  may  make  a  will. 

Every  person  over  the  age  of  eighteen  years,  of  sound 
mind,  may,  by  last  will,  dispose  of  all  his  estate,  real  and 
personal,  and  such  estate  not  disposed  of  by  will  is  succeeded 
to  as  provided  for  in  the  chapter  of  the  subject  of  succession 
in  the  statutes,  being  chargeable  in  both  cases  with  the  pay- 
ment of  decedent's  debts  as  provided  in  the  Code  of  Civil 
Procedure.^ 

Sec.  615.    Mental  capacity. 

The  following  instruction  to  the  jury  on  this  subject  was 
sustained : 

"It  is  soundness  or  unsoundness  of  mind,  and  not  of  any 
particular  state  of  bodily  health  that  must  govern  your  judg- 


1  Snyder,    8,889;     Wilson,    6,799;    California,   1,270    (Kerr),   identicaL 


477  DESCENT   AND   DISTRIBUTION.  §  616 

ment.  A  man  may  be  in  a  state  of  extreme  bodily  and  mental 
weakness  and  disease,  and  yet  he  may  possess  sufficient  under- 
standing to  direct  how  his  property  should  be  disposed  of. 
The  soundness  of  mind  required  by  law  to  enable  a  man  to 
make  a  will  is  not  necessarily  that  soundness  which  men  in 
good  health  and  vigor  possess.  "- 

One  may  be  in  an  extreme  feeble  physical  condition  and 
still  have  capacity  to  make  a  will.  But  when  there  is  evi- 
dence of  mental  feebleness,  the  extreme  physical  feebleness 
may  be  shown,  and  is  of  marked  significance  in  such  con- 
nection.^ 

Sec.  616.    Insane  delusion. 

The  courts  have  very  carefully  defined  what  is  meant  by 
insane  delusion  which  will  justify  refusal  of  probate  of  so 
solemn  and  important  an  instrument  as  a  will.  Prejudices, 
dislikes  and  antipathies,  however  ill-founded,  or  however 
strongly  entertained,  cannot  be  classed  as  insane  delusions ; 
nor  is  every  delusion  an  insane  delusion.  Whenever  one's 
mind  is  tricked  or  deceived  into  a  false  opinion  or  belief,  it 
has  been  played  upon;  it  is  deluded.  But  an  insane  delusion 
is  the  spontaneous  production  of  a  diseased  mind,  leading 
to  the  belief  in  the  existence  of  something  which  either  does 
not  exist  or  does  not  exist  in  the  manner  believed — a  belief 
which  a  rational  mind  would  not  entertain,  yet  which  is  so 
firmly  fixed  that  neither  argument  nor  evidence  can  convince 
to  the  contrary.  Moreover,  such  an  insane  delusion  must 
have  operated  to  cause  the  production  of  the  will  which  is 
under  attack.* 

2  In  re  Nelson's  Est:  i32  Cal  Cole,  49  Wis.  181,  5  N.  W.  34G; 
82,  64  Pac.  297.  Middleditch   v.   Williams,    45    X.   J. 

3  In  re  Doolittle's  Estate,  153  Eq.  34,  17  Atl.  826;  Stackhouse 
Cal.  29,  94  Pac.  240.  v.  Horton,  15  N.  J.  Eq.  228;  1  Redf., 

4  By  the  court  in  In  re  Kendrick's  Wills,  page  89 ;  In  re  Scott's  Estate, 
Estate,  130  Cal.  3G0,  62  Pac.  606;  CO  Pac.  (Cal.)  528.  Testatrix  was 
In  re  Carpenter's  Estate,  94  Cal.  a  woman  of  very  excitable  temper, 
406;  29  Pac.  IjlOd;  In  re  McDev-  and  when  excited  was  violent,  bot'i 
itt,  95  Cal.  33,  30   Pac.   101;   In  re  in   language   and   action.      She  was 


§  617  merwine's  trial  of  title  to  land.  478 

It  has  been  held  that  the  existence  of  any  insane  delusion 
will  not  invalidate  a  will,  but  only  the  existence  of  such  as 
actually  influenced  the  testator  in  the  making  of  the  will  and 
caused  prejudice  and  injury  to  the  contestant.^  A  will  is  not 
invalidated  by  delusions  of  the  testator  which  do  not  relate 
to  persons  or  objects  affected  by  it.  An  opinion  which  is 
merely  stimulated  and  but  a  fleeting  vagary  is  not  an  insane 
delusion.^ 

Sec.  617.    Undue  influence,  duress,  menace,  fraud. 

A  will  or  part  of  a  will  procured  to  be  made  by  duress, 
menace,  fraud  or  undue  influence,  may  be  denied  probate. 
A  revocation  procured  by  the  same  means  may  be  declared 
void.^ 

The  undue  influence  here  designated  by  the  statute  must, 
in  order  to  avoid  a  will,  destroy  the  free  agency  of  the  tes- 
tator at  the  time,  and  in  the  very  act  of  making  the  testament. 
It  must  bear  directly  upon  the  testamentary  act.^ 


highly    suspicious    of    nearly    every  he   was   ever   unfaithful    to   her,   or 

person  with  wliom  she  had  any  rela-  attempted   or   thought   of   poisoning 

tion;    feared   they   were   taking   ad-  her.      By    her    will,    made    shortly 

vantage  of  her  or  seeking  to  injure  after  her  marriage  with  contestant, 

her.     She  was  a  sufierer  from  dys-  and    also    by    her    codicil    executed 

pepsia    and    other    diseases    of    the  some  years  later,  and  shortly  before 

stomach,   whicli    finally    resulted    in  her  death,  she  gave  him  two-fiftieths 

her    death.      She    had    a    constant  of   her   estate.      Held,  that  the   evi- 

fear    of    beino-     poisoned;     charged  dence  authorized  the  trial  court  in 

those    about    her,    while    a    widow,  finding  that  testatrix  was  not  fully 

with    trying    to    poison    her;     and  convinced  of  the   charges  she  made 

after  her  marriage  with  contestant,  against  her  husband,  and  hence  was 

made  the  same  charge  against  him.  not  under  any  delusion  in  reference 

She  also  charged  him  with  seeking  thereto   at   the    time    she   made   the 

to    put    her    in    an    asylum    and    of  will.     In  re  Scott's  Estate,  128  Cal. 

unfaithfvilness.     Contestant  had  re-  157,  60   Pac.  528. 

marked    that   his   wife   was    insane,  s  In  the  Matter  of  the  Estate  of 

and  that  he  would  break  any  will  McKenna,  143  Cal.  580,  77  Pac.  461. 

she  would  make,  which  remark  was  « in     the     Matter     of     Redfield's 

repeated     to     her.      They     occupied  Estate,  106  €al.  637,  48  Pac.  794. 

different    apartments,    and    she    had  7  Snyder,   2,891;    Wilson,   6,801. 

seen  contestant  with  another  woman,  s  in  the  Matter  of   the  Estate  of 

though  there  was  no  evidence  that  Donovin,     14fi    Cal.    390,     73    Pac. 


479  DESCENT    AND    DISTRIBUTION.  §  617 

The  court  has  said  in  another  case,  that  undue  influence 
to  vitiate  an  act  must  amount  to  force  and  coertion  sufficient 
to  destroy  free  agency;  it  must  not  be  the  influence  of  affec- 
tion and  attachment;  it  must  not  be  the  desire  to  gratify  the 
wishes  of  another,  for  that  would  be  very  strong  ground  in 
support  of  the  testamentary  act ;  further,  there  must  be  proof 
that  the  act  was  obtained  by  this  coertion,  by  importunity, 
or  coukl  not  be  resisted ;  that  it  was  done  merely  for  the  sake 
of  peace,  so  that  motive  was  tantamount  to  force  or  fear." 
Again, .  the  true  test  of  undue  influence  is  that  it  overcomes 
the  will  without  convincing  the  judgment;  and  the  fact  that 
a  testator,  with  such  qualifications,  makes  a  foolish,  unnat- 
ural or  unjust  will,  does  not  show  that  undue  influence  caused 
the  will/"  There  is  no  legal  presumption  against  the  validity 
of  any  provision  which  a  husband  may  make  in  his  wife's 
favor,  for  she  may  justly  influence  the  making  of  her  hus- 
band's will  for  her  own  benefit,  or  that  of  others,  so  long 
as  she  does  not  act  fraudulently,  or  extort  benefits  from  her 
husband  when  he  is  not  in  condition  to  exercise  his  judgment. 
It  has  been  said  that  if  a  wife  by  her  good  virtues  had  gained 


1,081.  In  an  action  to  set  aside  a  that  the  complaint  is  insufficient, 
deed  executed  by  Jesse  0.  Goodwin,  even  if  it  is  admitted  that  undue 
deceased,  to  the  defendant,  the  alle-  influence  is  an  ultimate  fact  to  be 
gation  of  the  complaint  was:  "Said  pleaded  Imec  verbis,  it  is  not  alleged 
defendant  contriving  and  intending  that  the  execution  of  the  convey- 
to  defraud  the  said  Jesse  0.  Good-  ance  was  induced  solely  by  such 
win  of  his  said  property,  attempted  influence.  Xor  is  the  allegation 
to  and  did,  without  just  cause,  sufficient  as  to  the  allegation  of 
prejudice  the  mind  of  the  said  fraud,  because  the  fa.;ts  constituting 
Jesse  0.  Goodwin  against  his  rela-  fraud  are  not  stated.  Goodwin  v. 
tives,  and  especially  the  plaintifl",  Goodwin,  59  Cal.  500. 
and  by  means  of  false  representa-  9  Goodwin  v.  Goodwin,  59  Cal. 
tions,  improper  and  undue  influence,  560. 

aided  by  the  weakness  of  the  under-  lo  in  re  Donovin's  Estate,  140  Cal. 

standing  of  the  said  Jesse  O.  Good-  390,  73  Pac.  1,081;  Estate  of  McDev- 

win,     did     prevail     upon     him     to  itt,  95  Cal.  33,  30  Cal.  101;  In  the 

execute,     acknowledge     and     deliver  Matter   of  the  Estate   of   Kaufman, 

the     above     mentioned     conveyance,  117  Cal.   259,  49  Pac.    192,  59  Am. 

without  any  good,  valuable  or  law-  St.  Rep.  179. 
ful  consideration  whatever."     Held, 


§  617  merwine's  trial  of  title  to  land.  480 

such  an  ascendency  over  her  husband,  and  so  riveted  his 
affections  that  her  good  pleasure  is  a  law  to  him,  such  an 
influence  can  never  be  a  reason  for  impeaching  a  will  made 
in  her  favor/^ 

The  mental  and  physical  condition  of  the  testator  at  or 
about  the  time  of  the  execution  of  a  will  is  such  an  important 
factor  in  determining  whether  or  not  the  will  was  that  of  the 
testator,  or  an  instrument  procured  by  coertion  and  fraud, 
that  the  two  questions  are  kindred  and  very  closely  inter- 
woven and  connected  with  each  other.  It  is  a  matter  of 
common  knowledge  that  a  person  in  declining  health,  whose 
body  is  weakened  and  emaciated  by  disease,  is,  to  a  more  or 
less  degree,  impaired  in  his  mind.  The  strength  of  will,  the 
quickness  of  apprehension,  and  the  reasoning  powers  become 
impaired  as  the  body  becomes  enfeebled. 

In  such  case  the  testator  is  peculiarly  exposed  to  the  secret 
machinations  and  importunities  of  designing  persons,  who, 
in  the  guise  of  love  and  friendship,  have  surrounded  him  and 
administered  to  his  wants  as  life  and  reason  have  gradually 
ebbed  away.  The  soundness  of  mind  required  for  making  a 
will  has  relation  to  the  act  of  the  testator  in  making  final 
disposition  of  his  property  as  he  desires.  Although  feeble  in 
health,  suffering  under  disease,  aged,  and  infirm,  the  testator, 
if  of  sound  mind,  with  reference  to  the  disposition  of  his 
property,  may  make  a  will.  If  he  is  able  to  understand  and 
carry  in  mind  the  nature  and  situation  of  his  property,  and 
his  relations  to  his  relatives  and  those  around  him,  with 
clear  remembrance  as  to  those  in  whom,  and  those  things  in 
in  which  he  has  been  mostly  interested,  capable  of  under- 
standing the  act  he  is  doing,  and  the  relation  in  which  he 
stands  to  the  objects  of  his  bounty,  free  from  delusion,  the 
effect    of   disease   which   might   lead   him    to    dispose    of   his 

11  In    re     Donovin's    Estate,     140  In  the  Matter  of  Langford's  Estate, 

Cal.    300,    73    Pac.    1,081;    Small   v.  108  Cal.  608,  41  Pac.  701;   Latham 

Small,    16   Am.   Dec.   255;    Perry  v.  v.  Udell,  38   Mich.  238. 
Perry,   94  Tenn.   328,   29   S.    W.    1; 


481  DESCENT    AND   DISTRIBUTION.  §  618 

property  otherwise  than  he  would  if  he  knew  and  understood 
what  he  was  doing,  he  has  the  capacity  to  make  a  will.^- 

Undue  influence,  if  such  as  to  compel  or  procure  the  tes- 
tator to  do  that  Miiich  it  was  not  his  own  will  to  do,  and 
which  procures  an  instrument  which  is  not  the  free  and 
expressed  intention  of  the  testator,  will  vitiate  the  will.  The 
influence  must  be  undue  influence  in  order  to  vitiate  the 
instrument.  Influences  of  different  kinds  surround  every 
rational  being,  and  operate  necessarily  in  determining  his 
course  of  conduct.  The  influence  of  love  or  duty  prompts  a 
man  to  provide  for  his  wife  and  children  and  other  near 
relatives.  The  influence  of  pity  often  prompts  a  provision 
for  some  unfortunate  friend.  The  influence  of  education  may 
prompt  a  bequest  to  some  institution  of  learning,  or  of  re- 
ligion, to  some  church  for  charitable  purposes.  The  kind  of 
undue  influence  that  will  destroy  the  instrument  must  be 
such  as  in  effect  destroyed  the  testator's  free  agency,  and 
substituted  for  his  own,  another  person's  will.^^ 

Sec.  618.     Undue  influence,  execution,  evidence  of. 

In  an  action  where  the  probate  of  a  will  was  contested  on 
the  ground  that  its  execution  was  obtained  by  undue  influ- 
ence, evidence  that  the  testator  was  intoxicated  when  it  was 

12  By  the  court  in  In  the  Matter  ever  asked  him  to  make  a  will.  A 
of  Motz's  Estate,  130  Cal.  558,  63  washerwoman  testified  as  to  quar- 
Pac.  294.  rels  between  husband  and  wife,  and 

13  By  the  court  in  Motz's  Estate,  said  the  wife  was  "boss,"  and 
136  Cal.  558,  69  Pac.  294.  On  an  others  testified  that  he  said  she 
issue  whether  a  will  leaving  all  of  wanted  all  his  property,  etc.  Held, 
testator's  property  to  his  wife  was  not  an  abuse  of  discretion  to  set 
obtained  by  undue  influence  on  her  aside  a  finding  of  undue  influence. 
part,  one  of  the  subscribing  wit-  In  the  Matter  of  Motz's  Estate,  136 
nesses  testified  that  the  testator  Cal.  558,  69  Pac.  294.  It  was 
came  into  his  office  alone,  and  asked  proper  to  instruct  that  a  mere  sus- 
him  to  write  the  will,  giving  him  picion  that  undue  influence  oi* 
a  memorandum,  and  not  indicating  pressure  is  brought  to  bear,  is  not 
in  any  way  that  he  was  being  sufficient  to  justify  setting  aside  a 
coerced.  The  wife  was  not  present.  will.  In  the  Matter  of  Keegan's 
There  was  no  evidence  that  she  had  Estate,    139   Cal.    123,   72   Pac.   828. 


§  619  merwine's  trial  of  title  to  land.  482 

executed  is  admissible  in  connection  with  other  circumstances 
to  show  undue  influence ;  and  if  such  testimony  is  introduced, 
the  court  cannot  take  away  the  right  to  find  on  the  issue.^* 
It  cannot  be  stated  as  a  rule  of  law  that  because  a  man  is  a 
drunkard,  therefore  he  is  of  unsound  mind/'^ 

Sec.  619.  Undue  influence — The  admissibility  of  evidence  of 
testator's  declarations  as  to  undue  influence — 
Declarations  of  the  beneficiary. 

It  was  said  by  the  court,^'''  and  quoted  with  approval  in 
In  the  Matter  of  Arnold's  Estate:  ^^  ''The  external  facts  con- 
stituting an  exercise  of  undue  influence  must  be  established 
by  other  evidence  than  the  declarations  of  the  testator.  His 
declarations  are  incompetent  to  show  either  that  the  influence 
was  exercised,  or  that  it  affected  his  actions,  and  are  inad- 
missible, except  as  they  may  illustrate  his  mental  state,  and 
give  a  picture  of  his  mind  contemporaneous  with  the  declara- 
tions themselves.  AA^henever  the  condition  of  the  mind  is  a 
fact  which  it  is  desirable  to  prove,  it  may  be  established  by 
such  evidence  as  is  competent  for  that  purpose.  The  mental 
condition  of  an  individual  is  made  manifest  to  others  by  his 
statements,  declarations,  conversations  as  well  as  by  his  con- 
duct; and  when  the  state  of  a  testator's  mind  at  the  time 
of  the  execution  of  the  will  is  the  fact  to  be  shown,  his  con- 
temporaneous declarations  and  statements  furnish  the  most 
satisfactory  evidence  of  the  fact.  AVhenever  the  declarations 
of  the  testator  constitute  narratives  of  the  exercise  of  undue 
influence  or  of  the  effect  of  such  influence  upon  him,  they  are 
inadmissible  for  that  purpose,  whether  made  before  or  after 
the  execution  of  the  will.  If  made  at  the  time  of  its  execu- 
tion, they  may  be  admissible,  if  they  are  so  made  as  to  con- 
stitute a  part  of  the  res  gestae;  but,  if  not,  although  made  at 


14  In  the  Matter  of  Cunningham's  ^^  In  re  Calkin's  Estate,   112  Cal. 
Estate,  52  Cal.  465.  301,    44    Pac.    577. 

15  In     the     Matter     of     Johnson's  i7  147  Cal.  583. 
Estate,  57  Cal.  329. 


483  DESCENT   AND    DISTRIBUTION.  §  620 

the  time,  they  are  no  more  competent  than  if  made  subse- 
quently. If  they  are  of  such  a  character  that  they  also 
reveal  his  condition  of  mind,  they  may  be  admissible  for  that 
purpose,  though  not  of  the  res  gestae;  but  their  effect  must 
be  carefully  limited  to  the  question  of  his  condition  of  mind, 
and  they  must  not  be  considered  as  narrations  of  the  exercise 
or  effect  of  the  undue  influence.^* 

In  another  case  it  was  held  that  where  in  a  suit  to  revoke 
the  probate  of  a  will  on  the  ground  of  undue  influence,  the 
evidence  showed  a  continuous  effort  on  the  part  of  the  sole 
beneficiary  to  create  in  the  mind  of  the  testator  a  feeling  of 
disregard  for  his  children  by  a  former  wife,  and  that  she 
procured  the  making  of  the  will  against  his  wishes,  and 
thereafter,  by  the  same  means,  prevented  the  revocation  of 
it,  evidence  of  the  declarations  of  the  beneficiary  and  of  the 
testator  subsequent  to  the  execution  of  the  will  were  ad- 
missible as  against  the  objection  of  remoteness,  especially 
when  the  presumption  of  the  validity  of  the  will  from  its 
nondestruction  during  a  period  of  over  ten  years  was  re- 
lied on,^^ 

Sec.  620.    The  burden  of  proof  in  case  of  testamentaiy  in- 
capacity. 

The  burden  is  on  the  contestant  in  a  will  case  to  prove 
unsoundness  of  mind.-° 

18  Wigmore  on  Evidence,  Vol.  T,  20  in  the  Matter  of  Motz's  Estate, 
Sec.  230;  Vol.  3,  Sec.  1,738;  In  re  136  Cal.  558,  67  Pac.  294;  In  re 
McDevitt's  Estate,  95  Cal.  26,  30  Dolbeer's  Estate,  149  Cal.  227,  86 
Pac.  101;  Estate  of  Donivin,  140  Pac.  695.  The  burden  to  make  a 
Cal.  396,  73  Pac.  1,081;  Estate  of  prima  facie  showing  to  entitle  the 
James,  124  Cal.  653,  57  Pac.  578;  will  to  probate  is  on  the  proponent, 
Estate  of  Gregory,  133  Cal.  137,  65  where  the  burden  of  proof  to  show 
Pac.  315;  Haines  v.  Hayden,  95  the  will  was  forged  was  cast  upon 
Mich.  347,  54  N.  W.  911,  35  Am.  the  contestants.  Cartwright  v.  Hol- 
St.  Rep.  566;  Coghill  v.  Kennedy,  comb,  21  Okla.  548,  97  Pac.  385. 
119  Ala.  664,  24  So.  449;  Tyler  v.  Under  the  Code  of  Civil  Procedure, 
Gardiner,  35  N.  Y.  576.  Sec.   1,312,  providing  that  in  a  will 

19  In  the  Matter  of  Miller's  contest  involving  the  competency  of 
Estate,  147  Cal.  583,  88  Pac.  339.  the  decedent  to  make  a  will,  and  its 


§  620  MER wine's  trial  op  title  to  land.  484 

The  mere  fact  that  a  will  does  not  make  a  natural  disposi- 
tion of  the  testator's  property  does  not  raise  the  presumption 
that  it  was  procured  by  unlawful  means.-^  In  an  action  to 
contest  a  will  after  probate  thereof,  it  was  presumed  that  the 
testator  was  mentally  competent."  And  this  presumption  is 
sufficient  to  make  out  a  prima  facie  case  after  the  proponent 
opens  the  proceedings  by  preliminary  proof.-^ 

The  allegations  of  the  petition  must  be  in  concise  language, 
and  must  allege  the  facts  in  accordance  with  the  rules  of 
pleading  in  other  cases.  The  pleader  is  not  permitted  to 
allege  conclusions  of  law.  The  allegation  that  said  alleged 
will  is  invalid,  and  contrary  to  the  laws  of  California,  is  not 
an  allegation  of  fact,  and  sets  forth  no  ground  on  which  to 
set  aside  a  will  or  refuse  to  probate  one.-* 

It  is  improper  to  allege  that  the  will  was  procured  by 
"undue  influence."  The  petition  should  set  forth  all  the 
facts  which  constitute  undue  influence.-^ 

In  following  this  principle  of  law  and  rules  of  pleading, 
where  the  allegation  of  the  complaint  was :  Said  defendant  con- 
triving and  intending  to  defraud  the  said  testator  of  his  said 
property,  attempted  to  and  did,  without  just  cause,  prejudice 

due     execution,     the     contestant     is  unable    to    communicate    to    others 

plaintiff,    and    the    petitioner    is    de-  except  by   signs  in   answer   to   ques- 

fendant,    in    a    will    contest    either  tions  was  not  sufficient  to  shift  the 

before    or    after    probate    the    con-  "burden  of  proof  as  to  mental  capac- 

testant  has   the   burden   of   proving  ity   on   the    proponent    of    the   will. 

by  a  preponderance  of  the  evidence  In  re  Latour's  Estate,  140  Cal.  414, 

all  the  issues  of  fact  raised  by  him.  73  Pac.  970. 

The    burden    of    proving    that    the  21  In     the     Matter     of     Holman's 

decedent  understood  the  will  was  not  Estate,  42   Ore.   345. 

shifted  to  the  proponent  of  the  will  --  In  the  flatter  of  Dole's  Estate, 

in  a  will  contest  merely  because  it  147    Cal.    188,    81    Pac.    534;    In   re 

was  shown  that  the  decedent  at  the  McDevitt's    Estate,    95    Cal.    17,    30 

time  of  the  execution  of  the  will  was  Pac.    101. 

unable    to    speak    articulately,    but  =3  In     re    Johnson's     Estate,     152 

only  communicated  to  those  around  Cal.    758,   93   Pac.    1,015. 

him   by    signs    made   by   him.      The  ~*  In  re  Lennon's  Estate,  92  Pac. 

mere  fact  that  the  decedent  at  the  (Cal.)   870. 

time    of    making    his    will    was    so  25  in     re    Shepard's    Estate,     149 

enfeebled     by     sickness     as     to     be  Cal.  219,  85*Pac.  312. 


485  DESCENT    AND    DISTRIBUTION.  §  620 

the  mind  of  the  said  testator  against  his  relatives,  and  especially 
the  plaintiff,  and  by  means  of  false  representations  and  im- 
proper and  undue  influence,  aided  by  the  weakness  of  the  under- 
standing of  said  decedent,  did  prevail  upon  him  to  execute, 
acknowledge  and  deliver  the  above  mentioned  conveyance,  with- 
out any  good,  valuable  or  lawful  consideration  whatever,  it  was 
held  that  the  complaint  was  insufficient  even  if  it  was  ad- 
mitted that  the  undue  influence  is  the  ultimate  fact  to  bo 
pleaded  Jiaec  verbis,  it  is  not  alleged  that  the  execution  of  the 
conveyance  was  induced  solely  by  such  influence.  Nor  is  the 
allegation  sufficient  as  an  allegation  of  fraud,  because  the 
facts  constituting  fraud  are  not  stated.-** 

In  stating  the  grounds  of  the  contest,  if  unsoundness  of 
mind  is  relied  on,  it  is  sufficient  to  state  that  the  deceased 
at  the  time  of  the  execution  of  the  proposed  paper  was  not 
of  sound  and  disposing  mind — unsoundness  is  the  ultimate 
fact  to  be  found — and  acts  of  inebriety  or  other  causes  are 
to  go  to  the  jury  from  which  they  are  to  be  found;  and  the 
issue  upon  that  subject  is  to  be  the  ultimate  fact 
only;  but  when  the  grounds  of  a  contest  embrace  duress, 
menace,  fraud,  undue  influence,  due  execution  and  attesta- 
tion, subsequent  will  or  the  like,  which  matters  not  being 
ultimate  facts,  but  conclusions  of  law  to  be  drawn  from 
the  facts,  must  be  pleaded,  not  in  the  language  of  the  statute, 
but  the  facts  relied  upon  should  be  stated,  and  the  issues 
relative  thereto  submitted  to  the  jury,  to  the  end  that  the 
court,  either  upon  demurrer  to  the  statement  of  the  grounds 
of  contest,  or  upon  the  verdict,  may  determine  whether  as 
matter  of  law,  such  facts  so  pleaded  or  found,  constitute  a 
valid  reason  why  the  proposed  paper  should  not  be  admitted 
to  probate.  This  course  is  plain,  logical  and  direct,  and 
is  a  certain  guide  to  the  court,  to  counsel  and  to  the  jury. 
The  other  course  leads  to  uncertainty  as  to  what  is  relied 
on,    and    to    doubt    as    to    what    may    be    the    basis    of    the 

2s  Goodwin    v.    Goodwin,    59    Cal.    560. 


§  621  merwine's  trial  of  title  to  land,  486 

verdict.-'  The  court  will  not  permit  the  parties  to  go  outside 
the  issues  raised  in  the  case.  The  hearing  of  the  contest 
must  be  confined  entirely  to  the  matters  which  are  presented 
in  the  written  issues.-® 

Where  a  complaint  alleged  that  at  the  time  of  executing  a 
codicil  the  testator's  mind  was  weak,  «lebilitated  and  de- 
ranged to  such  an  extent  as  to  incapacitate  him  from  making 
or  undertaking  a  will  or  codicil,  a  special  issue  asking  if 
testator  at  that  time  was  mentally  incompetent  to  make  a 
codicil,  is  within  the  pleadings.'" 

Sec.  621.     Construction  of  statute  as  to  notice — Limitation  of 
action  as  to  heir. 

An  heir  who  was  absent  from  the  State  when  a  fraudulent 
will  was  probated,  and  for  more  than  a  year  thereafter,  and 
who  did  not  discover  the  fraud  until  after  the  expiration  of 
said  year,  was  barred  from  contesting  the  will  after  the 
expiration  of  the  statutory  limitation. ^° 

The  statute  providing  for  service  of  summons  on  an  infant 
has  no  application  to  service  of  notice  of  probate,  which  is 
specially  provided  for  by  Section  1304  of  the  statute.^*^  It  has 
been  held  that  a  probate  of  a  will  can  be  set  aside  because  no 
notice  was  served  on  a  child  not  then  in  being.^*- 

27  By  the  court  in  In  re  Estate  residing  in  the  State.  Held,  that 
of  Gharkey,   57   Cal.   275.  the  probate  of  the  will  being  a  pro- 

28  In  re  Estate  of  Kile,  72  Cal.  ceeding  in  rem,  the  constructive 
131,   13   Pac.   320.  notice  provided  for  in  Section  1,303 

29  In  the  Matter  of  the  Estate  of  is     sufficient    as    to    a    nonresident 
Kohler,   21    Pac.    (Cal.)    758.  party,    regardless    of    whether    See- 
so  In    re    Davis'    Estate,   69    Pac.  tion    1,304    is    unconstitutional,    as 

412,    136    Cal.    590.      The    code    of  being    discriminative    against    non- 
civil  procedure,  Section  1,303    (Call-  residents.     In  re  Davis'  Estate,   136 
fornia),    provides    for   notice   of    an  Cal.  590,   69  Pac.  412. 
application    for    the    probate    of    a  ^i  in    re    Hamilton's    Estate,    120 
will   by   printing   and   posting;    and  Cal.  421,  52  Pac.  708. 
Section    1,304  thereof   provides  that  32  In    re    Hamilton's    Estate,    120 
notice  of   such   application  must  be  Cal.  421,  52  Pac.  70S. 
mailed  to  the  heirs  of  the  testator 


487  DESCENT    AND    DISTRIBUTION.  §  621 

Where  the  right  person  was  served  it  was  sufficient  service 
of  notice  of  probate  of  a  will  on  "Helen  Majore  Hamilton" 
instead  of  "Ellen  Majore  Hamilton,"  and  an  affidavit  of 
publication  of  notice  for  the  probate  of  a  will  reciting  pub- 
lication for  fourteen  consecutive  days,  naming  the  dates,  and 
concluding  "every  day  said  newspaper  was  published  during 
said  time,  Sundays  and  holidays  excepted, ' '  is  sufficient  where 
evidence  was  admitted  without  objection,  explaining  that  the 
expression,  "Sundays  and  holidays  excepted"  referred  to 
the  publication  of  the  paper  and  not  of  the  notice.^^ 

Under  Sections  1303  and  1304  of  the  code  of  California, 
providing  that  the  clerk  must  set  a  time  for  hearing  the 
petition  for  the  probate  of  will,  and  publish  notice  thereof 
in  a  newspaper  for  a  specified  time,  and  that  copies  of  the 
notice  of  the  time  and  place  appointed  for  the  probate  of  the 
will  must  be  mailed  to  the  heirs  resident  in  the  State,  or 
personally  served  ten  days  before  the  hearing,  it  was  held 
that,  where  such  notice  was  duly  published  by  the  clerk,  but 
was  not  served  on  the  resident  heirs  before  the  day  set  for 
the  hearing,  it  was  not  necessary  to  set  a  new  day  for  the 
hearing  and  publish  a  new  notice  to  give  the  court  jurisdic- 
tion, but  that  it  was  sufficient  to  merely  postpone  the  hearing 
for  service  on  the  heirs.'* 

33  In  re  Hamilton's  Estate,  120  procedure  in  civil  actions,  which 
Cal.  421,  52  Pac.  708.  provide      (Sections     406-408)      that 

34  Curtis  V.  Underwood,  101  Cal.  summons,  alias  or  otherwise,  must 
661,  36  Pac.  110.  The  Code  of  Civil  be  issued  within  one  year  after  the 
Procedure,  Section  1,327,  provides  filing  of  the  complaint.  Held,  that 
that  the  probate  of  a  will  may  be  Sections  406  to  408  did  not  apply, 
contested  at  any  time  within  one  and  where  a  valid  petition  of  con- 
year  after  such  probate.  Section  test  w<as  filed,  and  thereupon  a  cita- 
1,328  requires  citation  to  be  issued  tion  was  issued  to  all  necessary 
on  the  filing  of  the  contest,  without  parties,  all  of  whom  were  at  once 
otherwise  limiting  the  time  for  served,  except  one,  as  to  whom  the 
issuance.  Section  1,329  provides  service  was  defective  through  mis- 
that  the  court  must  try  the  cause  if  take,  the  court  acquired  jurisdic- 
citation  has  been  served  on  "any  of  tion;  and,  the  trial  having  been 
the  persons  named  therein."  Sec-  had  in  due  season,  jurisdiction  was 
tion  1,713  makes  applicable  to  pro-  not  lost,  as  by  want  of  diligence  in 
bate      proceedings      the      rules      of  prosecution   of    the   contest,  by   the 


§§622,623         merwine's  trial  of  title  to  land,  488 

There  being  no  allegations  to  the  contrary,  the  proper 
notice  is  presumed  to  have  been  published :  ^^  and  where  the 
record  does  not  show  that  proof  of  service  of  notice  was  not 
made,  the  presumption  is  that  notice  was  served  and  proof 
made  at  the  hearing.^"  In  the  absence  of  any  other  record, 
recitals  in  an  order  that  citations  issued  to  the  heirs,  are 
sufficient  to  warrant  the  presumption  that  the  order  was 
regularly  made,  and  that  the  citation  was  duly  issued  and 
served.^^ 

Sec.  622.    Rights  of  married  woman. 

A  married  woman  may  dispose  of  all  her  separate  estate 
by  will,  without  the  consent  of  her  husband,  and  may  alter 
or  revoke  the  will  in  like  manner  as  if  she  were  single.  Her 
will  must  be  executed  and  proved  in  like  manner  as  other 
wills.^* 

Sec.  623.    What  may  be  disposed  of  by  a  will. 

Every  estate  and  interest  in  real  or  personal  property  to 
which  heirs,  husband,  widow,  or  next  of  kin  might  succeed, 
may  be  disposed  of  by  will :  Provided,  no  marriage  contract 
in  writing  has  been  entered  into  between  the  parties;  no  man 

fact  that  the  defendant  as  to  whom  saving  their  rights,  but,  when  a 
the  service  was  defective  was  not  complete  determination  of  the  con- 
duly  served  within  a  year  from  the  troversy  cannot  be  had  without  the 
filing  of  the  petition;  contestant's  presence  of  other  parties,  the  court 
attention  not  having  been  called  to  must  order  them  to  be  brought  in," 
the  defect  within  that  time.  The  the  application  of  said  section  not 
defendant  as  to  whom  service  was  being  limited  to  absent  persons  not 
defective  being  a  necessarj'  party,  named  as  parties  in  the  first  in- 
the  court  had  power  to  order  him  stance.  San  Francisco  v.  Superior 
to  be  brought  in  after  expiration  of  Ct.,  116  Cal.  443,  48  Pac.  379. 
the  year,  both  under  general  equi-  3^  Langdon  v.  Blackburn,  109  Cal. 
table    principles    and    practice,    and  19,  41   Pac.  814. 

under  the  Code  of  Civil  Procedure,  36  Jn  re  Estate  of  Twombley,   120 

Section    389,    providing    that    "the  Cal.  350,  52  Pac.  815. 

court    may    determine    any    contro-  37  Moore  v.  Earl,  91   Cal.  632,  27 

versy  between  the  parties  before   it  Pac.    1,087. 

when  it  can  be  done  without  preju-  38  Snyder,   .8,890;    Wilson,    6,800; 

dice  to  the  rights  of  others,  or  by  California,    1,273    (Kerr),  identical. 


489  DESCENT    AND    DISTRIBUTION.  §§  624-626 

while  married,  shall  bequeath  more  than  two-thirds  of  his 
property  away  from  his  wife,  nor  shall  any  woman,  while 
married,  bequeath  more  than  two-thirds  of  her  property 
away  from  her  husband:  Provided,  that  no  person  who  is 
prevented  by  law  from  alienating,  conveying  or  incumbering 
real  property  while  living,  shall  be  allowed  to  bequeath  same 
by  will.^^ 

Sec.  624.    Will  may  be  made  to  anyone  capable  of  taking. 

A  testamentary  disposition  may  be  made  to  any  person 
capable  by  law  of  taking  the  property  so  disposed  of,  except 
that  no  corporation  can  take  under  a  will,  unless  expressly 
authorized  by  its  charter  or  by  statute  so  to  take.**' 

Sec.  625.    Nuncupative  will. 

To  make  a  nuncupative  will  valid,  and  to  entitle  it  to  be 
admitted  to  probate,  the  following  requisites  must  be  ob- 
served : 

1.  The  estate  bequeathed  must  not  exceed  in  value  the 
sum  of  one  thousand  dollars. 

2.  It  must  be  proved  by  two  witnesses  who  were  present 
at  the  making  thereof,  one  of  whom  was  asked  by  the  testator 
at  the  time  to  bear  witness  that  such  was  his  will,  or  to 
that  effect. 

3.  The  decedent  must,  at  the  time,  have  been  in  actual 
military  service  in  the  field,  or  doing  duty  on  shipboard  at 
sea,  and  in  either  case  in  actual  contemplation,  fear  or  peril 
of  death,  or  the  decedent  must  have  been  at  the  time  in 
expectation  of  immediate  death  from  an  injury  received  the 
same  day.*^ 

Sec.  626.    Mutual  will. 

A  conjoint  or  mutual  will  is  valid,  but  it  may  be  revoked 
by  any  of  the  testators  in  like  manner  with  any  other  will.*^ 

39  Snyder,  8,892;  Act  of  March  27,  ^i  Snyder,  8,894;  V;  ilson,  6,804. 
1909.    '  *-  Snyder,  8,895 ;  Wilson,  6,805. 

40  Snyder,  8,893;  Wilson,  6,803; 
California,  1,275  (Kerr),  similar; 
Estate  of  Bulner,  59  Cal.  131. 


§§627,628       merwine's  trial  of  title  to  land.  490 

Sec.  627.    A  conditional  will  may  be  denied  probate. 

A  will,  the  validity  of  which  is  made  by  its  own  terms 
conditional,  may  be  denied  probate,  according  to  the  event, 
with  reference  to  the  condition.*^ 

Sec.  628.    Execution  of  wills — Olographic  wills. 

An  olographic  will  is  one  that  is  entirely  written,  dated  and 
signed  by  the  hand  of  the  testator  himself.  It  is  subject  to 
no  other  form,  and  may  be  made  in  or  out  of  this  State, 
and  need  not  be  witnessed.  Every  will,  other  than  a  nun- 
cupative will,  must  be  in  writing;  and  every  will,  other  than 
an  olographic  will  and  a  nuncupative  will,  must  be  executed 
and  attested  as  follows : 

1.  It  must  be  subscribed  at  the  end  thereof  by  the  testator 
himself,  or  some  person,  in  his  presence  and  by  his  direction, 
must  subscribe  his  name  thereto. 

2.  The  subscription  must  be  made  in  the  presence  of  the 
attesting  witnesses,  or  be  acknowledged  by  the  testator  to  them, 
to  have  been  made  by  him  or  by  his  authority. 

3.  The  testator  must,  at  the  time  of  subscribing  or  ac- 
knowledging the  same,  declare  to  the  attesting  witnesses  that 
the  instrument  is  his  will;  and, 

4.  There  must  be  two  attesting  witnesses,  each  of  whom 
must  sign  his  name  as  a  witness  at  the  end  of  the  will  at  the 
testator's  request  and  in  his  presence.** 

It  is  not  necessary  that  the  attestation  clause  of  the  wit- 
nesses be  attached  to  the  will,  in  order  to  make  the  will 
valid.  In  its  absence  it  can  be  shown  by  competent  evidence 
that  the  will  w^as  attested  as  required  by  law.  If  the  wall 
was  signed  by  the  witnesses,  the  absence  of  the  attestation 
clause  simply  changes  the  mode  of  proof  that  the  will  was 
wdtnessed  as  required  by  law.*^ 

43  Snyder,  8,896;   Wilson,  6,806.  require   that   an   olographic   will   be 

44  Snyder,  8,897 ;  Wilson,  6,807 ;  subscribed  by  the  testator  at  the 
California,  1,276  and  1,277  (Kerr),  end  thereof.  It  is  suflBcient  that 
identical.  it  be  signed  byhim,  and  this  sign- 

45  Ward  V.  Board,  12  Okla.  267,  ing  may  be  in  the  beginning  or  any 
70  Pac.  278.     The  statute  does  not  part  of  the  document.     Stratton  v. 


491  DESCENT    AND    DISTRIBUTION.  §§  629-633 

Sec.  629.    Nuncupative  will  need  not  be  in  writing. 

A  nuncupative  will  is  not  required  to  be  in  writing,  nor 
be  declared  or  attested  with  any  formalities.*** 

Sec.  630.    Witnessing  a  will. 

A  witness  to  a  written  will  must  write,  with  his  name,  his 
place  of  residence ;  and  the  person  who  subscribed  the  testa- 
tor's  name,  by  his  direction,  must  write  his  own  name  as  a 
witness  to  the  will.  But  a  violation  of  this  provision  does  not 
affect  the  validity  of  the  will.*^ 

Sec.  631.     Codicil— Effect  of. 

The  execution  of  a  codicil  referring  to  a  previous  will  has 
the  effect  to  republish  the  will  as  modified  by  the  codicil.*^ 

Sec.  632.    The  law  of  what  place  governs  as  to  a  will. 

A  will  of  real  or  personal  property,  or  both,  or  a  revocation 
thereof,  made  out  of  this  State  by  a  person  not  having  his 
domicile  in  this  State,  is  as  valid  when  executed  according 
to  the  law  of  the  place'  in  which  the  same  was  made,  or  in 
which  the  testator  was  at  the  time  domiciled,  as  if  it  were 
made  in  this  State,  and  according  to  the  provisions  of  this 
chapter.*'' 

Sec.  633.     The  law  must  be  followed  as  to  the  execution  of 
a  will. 
No  will,  or  revocation  is  valid,  unless  executed  either  ac- 
cording to  the  provisions  of  this  chapter,  or  according  to  the 

Morgan,  112  Cal.  513,  44  Pac.  1,028.  publication    was    sufficient.      Estate 

A  will  with  only  one  attesting  wit-  of   Johnson,    57    Cal.    529.      Persons 

ness  cannot  be  admitted  to  probate.  may  sign  by  mark.     As  to  this,  see 

Estate   of   McCabe,    68   Cal.    519,    9  Estate    of    Guilfoyle,    86    Cal.    594, 

Pac.   554.     Where   a   testator   signs  31  Pac.  553;  Estate  of  Walker,  110 

his  Avill  in  the  presence  of  the  sub-  Cal.    387,    42    Pac.    805;    Estate    of 

scribing    witnesses,    whereupon    the  Mullen,  110  Cal.  252,  42  Pac.  645. 
witnesses   sign   at   his   request,  -and  -is  Snyder,  8,898;  Wilson,  6,808. 

the    s-ubscribing    witness    then    asks  ^^  Snyder,  8.899 ;  Wilson,  6.809. 

the   testator   if   the   paper   was   his  48  Snyder,  8,900;  Wilson,  6.810. 

will,  to  which  he  replied,  "yes,"  in  49  Snyder,  8,901;  Wilson,  6,811. 

the  presence   of   the   witnesses,   the 


§§  634-636         merwine's  trial  of  title  to  land.  492 

law  of  the  place  in  which  it  was  made,  or  in  which  the  testa- 
tor was  at  the  time  domiciled.^" 


Sec.  634.     Change  of  domicile. 

Whenever  a  will,  or  a  revocation  thereof,  is  duly  executed 
according  to  the  law  of  the  place  in  which  the  same  was 
made,  or  in  which  the  testator  was  at  the  time  domiciled,  the 
same  is  regulated  as  to  the  validity  of  its  execution,  by  the 
law  of  such  place,  notwithstanding  that  the  testator  subse- 
quently changed  his  domicile  to  a  place  by  the  law  of  which 
such  will  would  be  void.^^ 

Sec  635.    Where  a  will  may  be  deposited. 

Every  county  judge  must  deposit  in  his  office  any  will  de- 
livered to  him  for  that  purpose,  and  give  a  written  receipt 
to  the  depositor;  and  must  enclose  such  will  in  a  sealed 
wrapper,  so  that  it  cannot  be  read,  and  indorse  thereon  the 
name  of  the  testator,  his  residence  and  the  date  of  deposit; 
and  such  wrapper  must  not  be  opened  until  its  delivery  under 
the  provisions  of  the  next  section.^- 

Sec.  636.     How  such  will  may  be  delivered. 

A  will  deposited  under  the  provisions  of  the  last  foregoing 
section  must  be  delivered  only: 

1.  To  the  testator  in  person. 

2.  Upon  his  written  order  duly  proved  by  the  oath  of  a 
subscribing  witness. 

3.  After  his  death,  to  the  person,  if  any,  named  in  the 
indorsement  on  the  wrapper  of  the  will ;  or, 

4.  If  there  is  no  such  indorsement,  and  if  the  will  was  not 
deposited  with  the  county  judge  having  jurisdiction  of  its 
probate,  then  to  the  county  judge  who  has  jurisdiction. 


53 


50  Snyder,  8,902;  Wilson,  6,812.  B2  Snyder,, 8,904:   Wilson,  6,814. 

51  Snyder,  8,903;  Wilson,  6,813.  53  Snyder,  8,905;  Wilson,  6,815. 


493  DESCENT    AND    DISTRIBUTION.  §§  637-640 

Sec.  637.     When  the  county  judge  may  open  will. 

The  county  judge  with  whom  a  will  is  deposited,  or  to 
whom  it  is  delivered,  must,  after  the  death  of  the  testator, 
publicly  open  and  examine  the  will  and  file  in  his  office, 
there  to  remain  until  duly  proved,  or  to  deliver  it  to  the 
county  judge  having  jurisdiction  of  its  probate.^* 

Sec.  638.    Proof  of  lost  or  destroyed  will. 

A  lost  or  destroyed  will  of  real  or  personal  property,  or 
both,  may  be  established  in  the  cases  provided  in  the  Pro- 
bate Code,  or  any  act  in  force  on  that  subject.^^ 

Sec.  639.     Revocation  of  wills. 

Except  in  cases  in  this  chapter  mentioned,  no  written  will 
or  any  part  thereof,  can  be  revoked  or  altered  otherwise  than : 

1.  By  a  written  will  or  other  writing  of  the  testator,  de- 
claring such  revocation  or  alteration,  and  executed  with  the 
same  formalities  with  which  a  will  should  be  executed  by  such 
testator;  or, 

2.  By  being  burnt,  torn,  canceled,  obliterated  or  destroyed, 
with  intent  and  for  the  purpose  of  revoking  the  same,  by  the 
testator  himself,  or  by  some  person  in  his  presence  and  by 
his  direction.^*' 

Sec.  640.     Proof  of  destruction  of  will. 

When  a  will  is  canceled  or  destroyed  by  any  other  person 
than  the  testator,  the  direction  of  the  testator  and  the  fact 
of  such  injury  or  destruction  must  be  proved  by  two  wit- 
nesses.^^ 


54  Snyder,  8,00G ;  Wilson,  6,816.  section,    see    Clark    v.    Ransom,    50 

55  Snyder,  8,907;  Wilson,  6,817.  Cal.  595;    Lones  v.  Lones,   108  Cal. 
56Snyder,    8,908;    Wilson,    6,818;  688,  41  Pac.  771 ;  Estate  of  Comassi, 

California,    1,292    (Kerr),   identical.  107  Cal.  1,  40  Pac.  15. 

As  to  revocation  of  wills  under  this  57  Snyder,  8,909;   Wilson,  6,819. 


§§  641-645        MER wine's  trial  of  title  to  land.  494 

Sec.  641.    Effect  of  partial  erasure. 

A  revocation  by  obliteration  on  the  face  of  the  will  may  be 
partial  or  total,  and  is  complete  if  the  material  part  is  so 
obliterated  as  to  show  an  intention  to  revoke ;  but  where,  in 
order  to  effect  a  new  disposition,  the  testator  attempts  to 
revoke  a  provision  of  the  will  by  altering  or  obliterating  it 
on  the  face  thereof,  such  revocation  is  not  valid  unless  the 
new  disposition  is  legally  effected.'^^ 

Sec.  642.     Revocation  of  will  in  duplicate. 

The  revocation  of  a  will  executed  in  duplicate,  may  be 
made  by  revoking  one  of  the  duplicates.'^* 

Sec.  643.    Revocation  of  subsequent  will — Effect  of. 

A  prior  will  is  not  revoked  by  a  subsequent  will,  unless 
the  latter  contains  an  express  revocation,  or  provisions  wholly 
inconsistent  with  the  terms  of  the  former  will;  but  in  other 
cases  the  prior  will  remains  effectual  so  far  as  consistent  with 
the  provisions  of  the  subsequent  will.*^'^ 

Sec.  644.    Effect  of  subsequent  will. 

If,  after  making  a  will,  the  testator  duly  makes  and  ex- 
ecutes a  subsequent  will,  the  destruction,  canceling  or  revoca- 
tion of  the  latter  does  not  revive  the  former,  unless  it  appears 
by  the  terms  of  such  revocation  that  it  was  his  intention  to 
remove  the  former  will,  or  unless  after  such  destruction, 
canceling  or  revocation,  he  republishes  the  prior  will.*^^ 

Sec.  645.    Marriage  of  and  issue  after  will  made. 

If,  after  having  made  a  will,  the  testator  marries  and  has 
issue  of  such  marriage,  born  either  in  his  lifetime  or  after 
his  death,  and  the  wife  or  issue  survive  him,  the  will  is 
revoked,  unless  provision  has  been  made  for  such  issue  by 
some   settlement,    or   unless   such   issue    are   provided   for   in 

ns  Snyder,  8,910;   Wilson,  0,820,  eo  Snyder,  8.012;   Wilson,  6.822. 

59  Snyder,  8,911;  Wilson,  6,821.  ei  Snyder,  8,913;  Wilson,  6,823. 


495  DESCENT    AND    DISTRIBUTION.  §§  646-648 

the  will  or  in  some  way  mentioned  therein,  as  to  show  an 
intention  not  to  make  such  provision,  and  no  other  evidence 
to  rebut  the  presumption  of  such  revocation  can  be  received. 
If,  after  making  a  will,  the  testator  marries,  and  the  wife 
survives  the  testator,  the  will  is  revoked,  unless  provision 
has  been  made  for  her  by  marriage  contract,  or  unless  she 
is  provided  for  in  the  will.''- 

Sec.  646.     Marriage  of  woman  revokes  will. 

A  will  executed  by  an  unmarried  woman  is  revoked  by  a 
subsequent  marriage,  and  is  not  revived  by  the  death  of 
her  husband.^^ 

Sec.  647.    Sale  of  devised  property — Effect  of. 

An  agreement  made  by  a  testator,  for  the  sale  or  trans- 
fer of  property  disposed  of  by  will  previously  made,  does  not 
revoke  such  disposal;  but  the  property  passes  by  the  will, 
subject  to  the  same  remedies  on  the  testator's  agreement, 
for  a  specific  performance  or  otherwise,  against  the  devisees 
or  legatees,  as  might  be  had  against  the  testator's  successors, 
if  the  same  had  passed  by  succession.*'* 

Sec.  648.    Incumbrance  not  a  revocation. 

A  charge  or  incumbrance  upon  any  estate,  for  the  purpose 
of  securing  the  payment  of  money  or  the  performance  of 
any  covenant  or  agreement,  is  not  a  revocation  of  any  will 
relating  to  the  same  estate  which  was  previously  executed, 
but  the  devise  and  legacies  therein  contained  must  pass  sub- 
ject to  such  charge  or  incumbrance.^^ 


62  Snyder,    8,914;    Act    of    March  63  Snyder,    8,915;    Wilson,    6,825; 

27,  1909;  California,  1,298  and  1,299  California,  1,300    (Kerr),  similar. 

(Kerr),  similar.    Upon  this  subject,  64  Snyder,  8,916;  Wilson,  6,826. 

see  Estate  of  Comassi,   107  Cal.   1,  65  Snyder,  8,917;  Wilson,  6,827. 
40   Pac.    15;    Corker   v.    Corker,   87 
Cal.   643,  25  Pac.   922. 


§§  649-652        MER wine's  trial,  op  title  to  land. 


496 


Sec.  649.     Partial  disposal  after  will. 

A  conveyance,  settlement,  or  other  act  of  a  testator,  by  which 
his  interest  in  a  tiling  previously  disposed  of  by  his  will  is 
altered,  but  not  wholly  divested,  is  not  a  revocation;  but  the 
will  passes  the  property  which  would  otherwise  devolve  by 
succession.^** 

Sec.  650.    When  such  act  revokes  a  will. 

If  the  instrument  by  which  an  alteration  is  made  in  the 
testator's  interest  in  a  thing  previously  disposed  of  by  his 
will,  expresses  his  intent  that  it  shall  be  a  revocation,  or  if 
it  contains  provisions  wholly  inconsistent  with  the  terms  and 
nature  of  the  testamentary  disposition,  it  operates  as  a 
revocation  thereof,  unless  such  inconsistent  provisions  depend 
on  a  condition  or  contingency,  by  reason  of  which  they  do  not 
take  effect.^' 

Sec.  651.     Codicils. 

The  revocation  of  a  will  revokes  all  its  codicils.®^ 

Sec.  652.     Succession  supplements  will,  when. 

Whenever  a  testator  has  a  child  born  after  the  making  of 
his  will,  either  in  his  lifetime  or  after  his  death,  and  dies 
leaving  such  child  unprovided  for  by  any  settlement,  and 
neither  provided  for  nor  in  any  way  mentioned  in  his  will, 
the  child  succeeds  to  the  same  portion  of  the  testator's  real 
and  personal  property  that  he  would  have  succeeded  to  if  the 
testator  had  died  intestate: 

1.  When  any  testator  omits  to  provide  in  his  will  for  any 
of  his  children,  or  for  the  issue  of  any  deceased  child,  unless 
it  appears  that  such  omission  was  intentional,  such  child, 
or  the  issue  of  such  child,  must  have  the  same  share  in  the 
estate  of  the  testator  as  if  he  had  died  intestate  and  succeeds 
thereto  as  provided  in  the  preceding  paragraph. 

eeSynder,  8.018;   Wilson,  6,828.  es  Snyder,  8,920;  Wilson,  6,830. 

67  Snyder,  8,919;   Wilson,  6,829. 


497  DESCENT    AND    DISTRIBUTION.  §  653 

2.  When  any  share  of  the  estate  of  a  testator  is  assigned 
to  a  child  born  after  the  making  of  a  will,  or  to  a  child,  or 
the  issue  of  a  child,  omitted  in  a  will  as  hereinbefore  men- 
tioned, the  same  must  first  be  taken  from  the  estate  not  dis- 
posed of  by  the  will,  if  any ;  if  that  is  not  sufficient,  so  much 
as  may  be  necessary  must  be  taken  from  all  the  devisees,  or 
legatees,  in  proportion  to  the  value  they  may  respectively 
receive  under  the  will,  unless  the  obvious  intention  of  the 
testator  in  relation  to  some  specific  devise  or  bequest  or  other 
provision  in  the  will  would  thereby  be  defeated ;  in  such  ease, 
such  specific  devise,  legacy  or  provision  may  be  exempted 
from  such  apportionment,  and  a  different  apportionment, 
consistent  with  the  intention  of  the  testator,  may  be  adopted. 

3.  If  such  children,  or  their  descendants,  so  unprovided 
for,  had  an  equal  proportion  of  the  testator's  estate  bestowed 
on  them  in  the  testator's  lifetime,  by  way  of  advancement, 
they  take  nothing  in  virtue  of  the  provisions  of  the  three 
preceding  subdivisions. 

4.  Every  devise  of  land  in  any  will  conveys  all  the  estate 
of  their  devisor  therein,  which  he  could  lawfully  devise, 
unless  it  clearly  appears  by  the  will  that  he  intended  to 
convey  a  less  estate.**^ 

Sec.  653.    Devisee's  descendants  take  property. 

When  any  estate  is  devised  to  any  child,  or  other  relation 
of  the  testator,  and  the  devisee  dies  before  the  testator,  leav- 
ing lineal  descendants,  such  descendants  take  the  estate  so 
given  by  the  will  in  the  same  manner  as  the  devisee  would 
have  done  had  he  survived  the  testator.''" 


69  Snyder,    8.921;    Wilson,    6.831;  of  Ross.  140  C.il.  282,  73  Pac.  976; 

California,  1,306,  1,307,  1,308,  1,309  Estate  of   Stevens,   83    Cal.    322,   23 

and  1,311  (Kerr),  similar;  see,  also,  Pac.  379;   Rhoton  v.  Blevin,  99  Cal. 

Smith   V.    Olstead,   88   Cal.   582,   26  645;    34  Pac.  513;   Payne  v.  Payne, 

Pac.  521;  Estate  of  Smith,  145  Cal.  18    Cal.   292;    Estate  of  Barton,   86 

118.  78  Pac.  369;  Estate  of  Salmon,  Cal.  441,  25  Pac.  15. 
107  Cal.  614,  40  Pac.   1,030;   Estate  70  Snyder,  8,922;  Wilson,  6,832. 


§§  654-657  merwine's  trial  of  title  to  land.  498 

Sec.  654.     Gift  to  a  witness  void. 

All  beneficial  devises,  legacies  or  gifts  whatever,  made  or 
given  in  any  will  to  a  subscribing  witness  thereto,  are  void 
unless  there  are  two  other  competent  subscribing  witnesses 
to  the  same;  but  a  mere  charge  on  the  estate  of  the  testator 
for  the  payment  of  debts  does  not  prevent  his  creditors  from 
being  competent  witnesses  to  the  will.^^ 

Sec.  655.     Gift  to  a  witness  not  void,  when. 

If  a  witness  to  whom  any  l)eneficial  devise,  legacy  or  gift, 
void  by  the  preceding  section,  is  made,  would  have  been 
entitled  to  any  share  of  the  estate  of  the  testator,  in  case 
the  will  should  not  be  established,  he  succeeds  to  so  much 
of  the  share  as  would  be  distributed  to  him,  not  exceeding 
the  devise  or  bequest  made  to  him  in  the  will,  and  he  may 
recover  the  same  of  the  other  devisees  or  legatees  named  in 
the  will,  in  proportion  to  and  out  of  the  parts  devised  or 
bequeathed  to  them,'^- 

Sec.  656.     Probate  of  will  not  prevented,  when. 

If  the  subscribing  witnesses  to  a  will  are  competent  at  the 
time  of  attesting  its  execution,  their  subsequent  incompe- 
tency, from  whatever  cause  it  may  arise,  does  not  prevent  the 
probate  and  allowance  of  the  will,  if  it  is  otherwise  satis- 
factorily proved.'^ 

Sec.  657.    Property  acquired  after  will  made. 

Any  estate,  right  or  interest  in  lands  acquired  by  the 
testator  after  the  making  of  his  will,  passes  thereby  and 
in  like  manner  as  if  title  thereto  was  vested  in  him  at  the 
time  of  making  the  will,  unless  the  contrary  manifestly 
appears  by  the  will  to  have  been  the  intention  of  the  tes- 
tator. Every  will  made  in  express  terms,  devising,  or  in  any 
other  terms,  denoting  the  intent  of  the  testator  to  devise  all 

7iRnyder,  8,923;  Wilson,  6,833.  73  Snyder,  8,925;  Wilson,  6,835. 

"Snyder,  8,924;  Wilson,  6,834. 


499 


DESCENT    AND    DISTRIBUTION.  §§  658-661 


the  real  estate  of  such  testator,  passes  all  the  real  estate 
which  such  testator  was  entitled  to  devise  at  the  time  of  his 
decease.'^* 

Sec.  658.    Intention  of  testator  governs. 

A  will  is  to  be  construed  according  to  the  intention  of  the 
testator.  Where  his  intention  cannot  have  effect  to  its  full 
extent,  it  must  have  effect  as  far  as  possible." 

Sec.  659.    Will  excludes  all  oral  declarations. 

In  case  of  uncertainty,  arising  upon  the  face  of  a  will,  as 
to  the  application  of  any  of  its  provisions,  the  testator's 
intention  is  to  be  ascertained  from  the  words  of  the  will, 
taking  into  view  the  circumstances  under  which  it  was  made, 
exclusive  of  his  oral  declarations."® 

Sic.  660.    Rules  of  interpretation. 

In  interpreting  a  will,  subject  to  the  laws  of  this  State, 
the  rules  prescribed  by  the  following  sections  of  this  chap- 
ter are  to  be  observed,  unless  an  intention  to  the  contrary 
clearly  appears."'' 

Sec.  661.     Instruments  construed  together. 

Several  testamentary  instruments,  executed  by  the  same 
testator,  are  to  be  taken  and  construed  together  as  one  in- 
strument.'* 

74  Snyder,  8,926;  Wilson,  6,836.  77  Snyder,  8,929;  Wilson,  6,839. 

75  Snyder,  8,927;  Wilson,  6,837;  78  Snyder,  8,930;  Wilson,  6,840; 
California,  1,317  (Kerr),  identical;  California,  1,320  (Kerr),  identical. 
Estate  of  Fair,  132  Cal.  523,  60  As  to  construction  of  codicil,  see 
Pac.  442;  Estate  of  Whitcomb,  24  Estate  of  Ladd,  94  Cal.  670,  30 
Pac.  1,028;  Estate  of  Rogers,  94  Pac.  99;  Estate  of  McCaulay,  138 
Cal.  520,  29  Pac.  962;  Estate  of  Cal.  432,  71  Pac.  512;  Estate  of 
Larkmeyer,  135  Cal.  28,  66  Pac.  DeLaveaga,  119  Cal.  651,  51  Pac. 
961;  Estate  of  Reith,  144  Cal.  314,  1,074.  Instruments  of  same  date  to 
77  Pac.  942;  Rhoton  v.  Blevin,  99  be  construed  together,  when.  Estate 
Cal.   645,  64  Pac.   513.  of   Murphy,    104   Cal.   554,    38   Pac. 

76  Snyder,  8,928 ;  Wilson,  6,838.  543. 


§§  662-666         merwine's  trial  of  title  to  land.  500 

Sec.  662.     Irreconcilable  parts. 

All  the  parts  of  a  will  are  to  be  construed  in  relation  to 
each  other,  and  so  as  if  possible  to  form  one  consistent  whole, 
but  where  several  parts  are  absolutely  irreconcilable,  the 
latter  must  prevail.'^" 

Sec.  663.     Distinct  deyises  not  affected  by  inaccuracies. 

A  clear  and  distinct  devise  or  bequest  cannot  be  affected 
by  any  reasons  assigned  therefor,  or  by  any  other  words  not 
equally  clear  and  distinct,  or  by  inference  or  argument  from 
other  parts  of  the  will,  or  by  an  inaccurate  recital  of,  or 
reference  to  its  contents  in  another  part  of  the  will.**> 

Sec.  664.     Ambiguities,  how  explained. 

Where  the  meaning  of  any  part  of  a  will  is  ambiguous  or 
doubtful,  it  may  be  explained  by  any  reference  thereto,  or 
recital  thereof,  in  another  part  of  the  will." 

Sec.  665.    Words  taken  in  ordinary  sense. 

The  words  of  a  will  are  to  be  taken  in  their  ordinary  and 
grammatical  sense,  unless  a  clear  intention  to  use  them  in 
another  sense  can  be  collected,  and  that  other  can  be  ascer- 
tained.*^ 

Sec.  666.     Rule  of  construction. 

The  words  of  a  will  are  to  receive  an  interpretation  which 
will  give  to  every  expression  some  effect  rather  than  one 
which  will  render  any  of  the  expressions  inoperative.*^ 


79  Snyder,    8.931;    Wilson,    6.841;  Estate  of  Martin,   132   Cal.   666,  61 
California,   1,321    (Kerr),  identical;  Pac.  964. 

see,  on  this  subject,  Estate  of  Ladd,  si  f^nyde^,  8.933;   Wilson,  6,843. 

94  Cal.  670,  30   Pac.  DO;   Estate  of  82  Snyder,  8,934;   Wilson,  6,844. 

McCaulay,    138    Cal.    432,    71    Pac.  s"  Snyder,    8.935;    Wilson,    6,84.5; 

512.  California,   1,325    (Kerr),  identical; 

80  Snyder,    8,932;    Wilson,    6,842;  see  Estate  of  Stratton,  112  Cal.  513, 
California,  1,322    (Kerr),  identical;  44  Pac.  1,028.* 


501  DESCENT    AND    DISTRIBUTION.  §§  667-671 

Sec.  667.     Validity  of  will  favored. 

Of  two  modes  of  interpreting  a  will,  that  is  to  be  preferred 
which  will  prevent  a  total  intestacy.^* 

Sec.  668.    Technical  words. 

Technical  words  in  a  will  are  to  be  construed  in  their  tech- 
nical sense  unless  the  context  clearly  indicates  a  contrary 
intention.  Again,  technical  words  are  not  necessary  to  give 
effect  to  any  species  of  disposition  by  will.^^ 

Sec.  669.    Words  of  inheritance. 

The  term  ''heirs,"  or  other  words  of  inheritance,  are  not 
requisite  to  devise  a  fee,  and  a  devise  of  real  property  passes 
all  the  estate  of  the  testator,  unless  otherwise  limited.  And 
real  or  personal  property  embraced  in  a  power  to  devise 
passes  by  a  will  purporting  to  devise  all  the  real  or  personal 
property  of  the  testator.**^ 

Sec.  670.    De\dse  in  general  terms. 

A  devise  or  bequest  of  all  the  testator's  real  or  personal 
property,  in  express  terms,  or  in  any  other  terms  denoting 
his  intent  to  dispose  of  all  his  real  or  personal  property, 
passes  all  the  real  or  personal  property  which  he  was  enti- 
tled to  dispose  of  by  will  at  the  time  of  his  death." 

Sec.  671.    Residue  of  real  estate. 

A  devise  of  the  residue  of  the  testator's  real  property 
passes  all  the  real  property  which  he  was  entitled  to  devise 


84  Snyder,    8.936;    Wilson,    6,846;  85  Snyder,   8,937   and   8,938;    Wil- 

California,  1,326    (Kerr),   identical;  son,  6,847  and  6,848. 

LeBreton  v.  Cook,   107   Cal.  410,  40  ss  Snyder,   8,939   and   8,940;    Wil- 

Pac.    552;     Toland    v.    Toland,    123  son,  6,849  and   6,850. 

Cal.    140,    55    Pae.    681;    Estate    of  87  Snyder,    8.941;    Wilson,    6,851; 

Fay,  145  Cal.  82,  28  Pac.  340.  California,    1,331    (Kerr),   identical. 


§§  672-675         merwine's  trial  of  title  to  land.  502 

at  the  time  of  his  death,  not  otherwise  effectually  devised  by 
his  will.** 

Sec.  672.    Residue  of  personalty. 

A  bequest  of  the  residue  of  the  testator's  personal  property 
passes  all  the  personal  property  which  he  was  entitled  to  be- 
queath at  the  time  of  his  death  not  otherwise  effectually  be- 
queathed by  his  will.*® 

Sec.  673.    Effect  of  certain  terms. 

A  testamentary  disposition  to  "heirs,"  "relations,"  "near- 
est relations,"  "representatives,"  "legal  representatives,"  or 
"personal  representatives,"  or  "family,"  "issue,"  "descend- 
ants," "nearest,"  or  "next  of  kin,"  or  any  person,  wdthout 
other  words  of  qualification,  and  when  the  terms  are  used  as 
words  of  donation,  and  not  of  limitation,  vests  the  property 
in  those  who  would  be  entitled  to  succeed  to  the  property 
of  such  person  according  to  the  provisions  of  Chapter  twenty - 
seven  of  the  Statutes  of  the  State  of  Oklahoma.®" 

Sec.  674.     Terms  mentioned  are  v/ords  of  donation. 

The  terms  mentioned  in  the  last  section  are  used  as  words 
of  donation,  and  not  limitation,  when  the  property  is  given 
to  the  person  so  designated,  directly,  and  not  as  a  qualifica- 
tion of  an  estate  given  to  the  ancestor  of  such  person.®^ 

Sec.  675.    Postponement  of  possession. 

Words  in  a  will  referring  to  death  or  survivorship,  simply, 
relate  to  the  time  of  the  testator's  death,  unless  possession  is 

88  Snyder,  8,942;  Wilson,  6,852;  so  Snyder,  8.044;  Wilson,  6,854; 
California,  1,332  (Kerr),  identical;  California,  1,334  (Korr),  identical. 
Estate  of  Granniff,  132  Cal.  1,  75  Estate  of  Schedel,  73  Cal.  594,  15 
Pac.  324;  Estate  of  Mullen,  48  Cal.  Pac.  297;  Rhoton  v.  Blevin,  99  Cal. 
165;   Estate  of  Uphani,   122  Cal.  90,  645;   35  Pac.  513. 

59  Pac.  315.  9i  Snyder,  8,945;  Wilson,  6,855. 

89  Snyder,  8,943;  Wilson,  6,853. 


503  DESCENT    AND    DISTRIBUTION.  §§  676-679 

actually  postponed,  when  they  must  be  referred  to  the  time  of 
possession.^- 

Sec.  676.     Class  includes  all. 

A  testamentary  disposition  to  a  class  includes  every  person 
answering  the  description  at  the  testator's  death;  but  when 
the  possession  is  postponed  to  a  future  period,  it  includes  also 
all  persons  coming  within  the  description  before  the  time  to 
which  possession  is  postponed.^^ 

Sec.  677.     Conversion  of  realty. 

When  a  will  directs  the  conversion  of  real  property  into 
money,  such  property  and  all  its  proceeds  must  be  deemed 
personal  property,  from  the  time  of  the  testator's  death.''* 

Sec.  678.     Unborn  child  included. 

A  child  conceived  before,  but  not  born  until  after  a  tes- 
tator's death,  or  any  other  period  when  a  disposition  to  a 
class  vests  in  right  or  in  possession,  takes,  if  answering  to  the 
description  of  the  class.^^ 

Sec.  679.    Imperfect  description  corrected,  how. 

When  applying  a  will,  it  is  found  that  there  is  an  imperfect 
description,  or  that  no  person  or  property  exactly  answers 
the  description,  mistakes  and  omissions  must  be  corrected, 
if  the  error  appears  from  the  context  of  the  will  or  from 
extrinsic  evidence;  but  evidence  of  the  declarations  of  the 
testator  as  to  his  intentions  cannot  be  received.^** 


92  Snyder,  8,940;  Wilson,  6.856;  94  Snyder,  8,948;  Wilson,  6,858; 
California,  1,336  (Kerr),  identical;  California,  1,338  (Kerr),  identical; 
Estate  of  Winter,  114  Cal.  186,  45  Fatjo  v.  Swassey,  111  Cal.  628,  44 
Pac.   1,063.  Pac.    325;    Estate   of   Walkerly,   108 

93  Snyder,    8,947;    Wilson,    6,857;  Cal.  627,  41  Pac.  772. 
California,  1,337    (Kerr),   identical;  as  Snyder,  8,949;  Wilson,  6,859. 
Goldtree  v.  Thompson,  79   Cal.  613,           96  Snyder,    8,950;    Wilson,    6,800; 
32  Pac.  50.  California,  1,340    (Kerr),  identical; 


§§  680-684       merwine's  trial  of  title  to  land.  504 

Sec.  680.     Testamentary  dispositions  vest  at  death. 

Testamentary  dispositions,  including  devises  and  bequests 
to  a  person  on  attaining  majority,  are  presumed  to  vest  at 
the  testator's  death/-*^ 

Sec.  681.     Can  be  divested,  when. 

A  testamentary  disposition,  when  vested,  cannot  be  divested 
unless  upon  the  occurrence  of  the  precise  contingency  pre- 
scribed by  the  testator  for  that  purpose.''^ 

Sec.  682.     Death  of  devisee — Effect  of. 

If  a  devisee  or  legatee  dies  during  the  lifetime  of  the 
testator,  the  testamentary  disposition  to  him  fails,  unless  an 
intention  appears  to  substitute  some  other  in  his  place,  except 
as  provided  in  Section  8922,  Snyder;  Section  6832,  Wilson,^^ 

Sec.  683.     Interest  of  persons  in  remainder. 

The  death  of  a  devisee  or  legatee  of  a  limited  interest, 
before  the  testator's  death,  does  not  defeat  the  interests  of 
persons  in  remainder,  who  survive  the  testator.^ 

Sec.  684.     Conditional  disposition  defined. 

A  conditional  disposition  is  one  which  depends  upon  the 
occurrence  of  some  uncertain  event,  by  which  it  is  either  to 
take  effect  or  be  defeated.^ 


Estate  of  Young,    123   Cal.   337,   55  m  Snyder,    8,953;    Wilson,    6,863; 

Pac.  1,011;  Estate  of  Walkeiiy,  108  California,   1,343    (Kerr),  identical; 

Cal.    627,    41    Pac.    772;    Estate    of  Estate  of  Bennet,   134  Cal.   320,   06 

Mitchell,  102  Cal.  202,  34  Pac.  614;  Pac.  370;   Estate  of  Sutro,  139  Cal. 

Estate    of    Stratton,    112    Cal.    513,  87,   72  Pac.  827;   Estate  of  Hittell, 

44  Pac.   1,028.  141   Cal.  432,   75  Pac.  53. 

97  Snyder,    8,951;    Wilson,    6,861;  i  Snyder,    8,954;    Wilson,   6,864. 
■California,   1,341    (Kerr),  identical;  2  Snyder,     8,955;     Wilson,     6,865; 
Williams   v.    Williams,    73    Cal.    99,  California,   1,345    (Kerr),  identical; 
14  Pac.   394;   Estate  of  Brown,  143  Born   v.   Horstann.   80  Cal.   452,   22 
Cal.  450,  77  Pac.   160.  Pac.  169,  5  L.  R.  A.  577;   Estate  of 

98  Snyder,  8,952;   Wilson,  6,862.  Walkerly,  108  Qal.  627,  48  Am.  St. 

Rep.  91,  41  Pac.  772. 


505  DESCENT    AND    DISTRIBUTION.  §§  685-690 

Sec.  685.     Condition  precedent  defined. 

A  condition  precedent  in  a  will  is  one  which  is  required  to 
be  fulfilled  before  a  particular  disposition  takes  effect.^ 

Sec.  686.     Unknown  unavoidable  event — Effect  of. 

Where  a  testamentary  disposition  is  made  upon  a  condition 
precedent,  nothing  vests  until  the  condition  is  fulfilled,  except 
where  such  fulfillment  is  impossible,  in  which  case  the  dis- 
position vests,  unless  the  condition  was  the  sole  motive 
thereof,  and  the  impossibility  was  unknown  to  the  testator, 
or  arose  from  an  unavoidable  event  subsequent  to  the  execu- 
tion of  the  will.* 

Sec.  687.     Substantial  compliance  sufficient. 

A  condition  precedent  in  a  will  is  to  be  deemed  performed 
when  the  testator's  intention  has  been  substantially,  though 
not  literally,  complied  with.^ 

Sec.  688.     Condition  subsequent  defined. 

A  condition  subsequent  is  where  an  estate  or  interest  is  so 
given  as  to  vest  immediately,  subject  only  to  be  divested  by 
some  subsequent  act  or  event." 

Sec.  689.     Devise  to  more  than  one  person, 

A  devise  or  legacy  given  to  more  than  one  person  vests  in 
them  as  owners  in  common.'^ 

Sec.  690.     Gifts  do  not  reduce  legacies. 

Advancements  or  gifts  are  not  to  be  taken  as  ademptions 
of  general  legacies,  unless  such  intention  is  expressed  by  the 
testator  in  writing.^ 

3  Snyder,    8,956;    Wilson,    6,866.  Estate  of  Utz,  43   Cal.   200;    Estate 

4  Snyder,  8.957;    Wilson,   6,867.  of  Hittell,  141  Cal.  432,  75  Pac.  53. 

5  Snyder,   8,958;    Wilson,   6,868.  «  Snyder,    8,961;     Wilson,    6,871; 

6  Snyder,   8,959;    Wilson,   6.869.  California,   1,351    (Kerr),  identical; 

7  Snyder,  8.960;  Wilson,  6,870;  Estate  of  Zelle,  74  Cal.  125,  15  Pac. 
California,   1,350    (Kerr),  identical;  455. 


§§  691-693         mebwine's  trial  of  title  to  land. 


506 


Sec.  691.    Legacies  classified. 

Legacies  are  distinguished  and  designated,  according  to 
their  nature,  as  follows : 

First.  A  legacy  of  a  particular  thing,  specified  and  dis- 
tinguished from  all  others  of  the  same  kind  belonging  to  the 
testator,  is  specific ;  if  such  legacy  fails,  resort  cannot  be  had 
to  the  other  property  of  the  testator. 

Second.  A  legacy  is  demonstrative  when  the  particular 
fund  or  personal  property  is  pointed  out  from  which  it  is  to 
be  taken  or  paid;  if  such  fund  or  property  fails  in  whole  or 
in  part,  resort  may  be  had  to  the  general  assets  as  in  case 
of  a  general  legacy. 

Third.  An  annuity  is  a  bequest  of  certain  specified  sums 
periodically;  if  the  fund  or  property  out  of  which  they  are 
payable  fails,  resort  may  be  had  to  the  general  assets,  as  in 
case  of  a  general  legacy. 

Fourth.  A  residuary  legacy  embraces  only  that  which  re- 
mains after  all  the  bequests  of  the  will  are  discharged. 

Fifth.     All  other  legacies  are  general  legacies.^ 

Sec.  692.     Property  chargeable  with  payment  of  debts. 

"When  a  person  dies  intestate,  all  his  property,  real  and 
personal,  without  any  distinction  between  them,  is  charge- 
able with  the  payment  of  his  debts,  except  as  otherwise  pro- 
vided in  this  chapter  and  under  the  code  of  civil  procedure.'" 

Sec.  693.     Order  in  which  property  applied  to  debts. 

The  property  of  a  testator,  except  as  otherwise  especially 
provided   in   this    chapter    and   under    the   code   of   civil   pro- 

9  Snyder,    8,962;     Wilson,    6,872;  lo  Snyder,    8,963;    Wilson,    6,873; 

California,  1,357    (Kerr),  identical;  California,  1,358    (Kerr),  identical; 

Estate  of  Woodwortli,  31   Cal.  595;  Fallow    v.    Butler,    21    Cal.    24,    81 

Estate  of  Zelle,  74  Cal.  125,  15  Pac.  Am.    Dec.    143;    Booth    v.    Pendola, 

455;  Estate  of  Brown,  143  Cal.  450,  88   Cal.  36,  23  Pac.  200;   Estate  of 

77  Pac.  160;  Estate  of  Mackay,  107  Crosby,   55    Cal.   574;    McDonald   v. 

Cal.    303,    40    Pac.    558;    Estate    of  'McElroy,  60  Cal.  484. 
Williams,  112  Cal.  521,  53  Am.  St. 
Rep.    224,    44    Pac.    808;     Abila    v. 
Burnett,  33  Cal.  658. 


507  DESCENT    AND    DISTRIBUTION.  §§  694-695 

cedure,  must  be  resorted  to  for  the  payment  of  debts  in  the 
following  order: 

First.  The  property  which  is  expressly  appropriated  by 
the  will  for  the  payment  of  the  debts. 

Second.     Property  not  disposed  of  by  the  will. 

Third.  Property  which  is  devised  or  bequeathed  to  a 
residuary  legatee. 

Fourth.  Property  which  is  not  specifically  devised  or 
bequeathed ;  and, 

Fifth.  All  other  property  ratably.  Before  any  debts  are 
paid,  the  expenses  of  the  administration  and  the  allowance  to 
the  family  must  be  paid  or  provided  for.^^ 

Sec.  694.     For  payment  of  legacies. 

The  property  of  a  testator,  except  as  otherwise  especially 
provided  in  this  chapter  and  under  the  code  of  civil  pro- 
cedure, must  be  resorted  to  for  the  payment  of  legacies  in  the 
following  order : 

First.  The  property  which  is  expressly  appropriated  by  the 
will  for  the  payment  of  the  legacies. 

Second.    Property  not  disposed  of  by  the  will. 

'Third.  Property  which  is  devised  or  bequeathed  to  a 
residuary  legatee. 

Fourth.  Property  which  is  specifically  devised  or  be- 
queathed.^- 

Sec.  695.     Preferred  legacies. 

Legacies  to  husband,  widow  or  kindred  of  any  class,  are 
chargeable  only  after  legacies  to  persons  not  related  to  the 
testator.^^ 

11  Snyder,  8,964;  Wilson,  6,874:  Estate  of  Eoss,  140  Cal.  282,  73 
California,  1,359  (Kerr),  identical;  Pac.  976;  Estate  of  Smith,  145  Cal. 
Estate  of  Woodwortli,  31   Cal.  595;        118,  78  Pac.  369. 

Estate  of   Traver,    145   Cal.   508,   78  1 3  Snyder,    8,966;    Wilson,    6,876; 

Pac.    1,058;    Estate   of   Heydenfeldt,  California,   1,361    (Kerr),   identical; 

106   Cal.    434,   39   Pac.    788.  Estate    of    Apple,    66    Cal.    432,    6 

12  Snyder,    8,965;    Wilson,    6,875;  Pac.   7. 
California,   1,360    (Kerr),  identical; 


§§  696-699        merwine's  trial  of  title  to  land.  508 

Sec.  696.     Class  only  affected. 

Abatement  takes  place  in  any  class  only  as  between  legacies 
of  that  class,  unless  a  different  intention  is  expressed  in  the 
will.^* 

Sec.  697.    Representative  may  sell. 

In  a  specific  devise  or  legacy,  the  title  passes  by  the  will, 
but  possession  can  only  be  obtained  from  the  personal  rep- 
resentative;  and  he  may  be  authorized  by  the  county  court 
to  sell  the  property  devised  or  bequeathed,  in  the  cases  herein 
provided.^^ 

Sec.  698.     Proved  devise  impairs  deed  by  heir. 

The  rights  of  a  purchaser  or  incumbrances  of  real  property 
in  good  faith,  and  for  value,  derived  from  any  person  claim- 
ing the  same  by  succession,  are  not  impaired  by  any  devise 
made  by  the  decedent  from  whom  succession  is  claimed 
unless  the  instrument  containing  such  devise  is  duly  proved 
as  a  will  and  recorded  in  the  office  of  the  county  court 
having  jurisdiction  thereof,  or  unless  written  notice  of  such 
devise  is  filed  with  the  county  judge  of  the  county  where  real 
property  is  situated,  within  four  years  after  the  devisor's 
death.i« 

Sec.  699.     Succession  to  limited  devises. 

Where  specific  legacies  are  for  life  only,  the  first  legatee 
must  sign  and  deliver  to  the  second  legatee,  or,  if  there  is 
none,  to  the  personal  representative,  an  inventory  of  the 
property,  expressing  that  the  same  is  in  his  custody  for  life 
only,  and  that,  on  his  decease,  it  is  to  be  delivered  and  to 
remain  to  the  use  and  for  the  benefit  of  the  second  legatee, 
or  to  the  personal  representative,  as  the  case  may  be.^^ 

i4Siiyflcr,    8,0G7;    ^Yilson,    6,877;  is  Snyder,    8,968;    Wilson,    6,878; 

Californiii,   1,362    (Kerr),  identical;        California,   1,363    (Kerr),  similar. 
Estate    of    ^'eistrath,    66    Cal.    330,  ic  Snyder,    8,069;    Wilson,    6,879; 

5  Pac.  507.  California,  1;364    (Kerr),  similar. 

"Snyder,  8,970;  Wilson,  6,880. 


509  DESCENT    AND   DISTRIBUTION.  §§700-705 

Sec.  700.    Income  after  death. 

In  case  of  a  bequest  of  the  interest  or  income  of  a  certain 
sum  or  fund,  the  income  accrues  from  the  testator's  death/' 

Sec.  701.    Legacy,  etc.,  may  be  satisfied  before  death. 

A  legacy,  or  a  gift  in  contemplation,  fear  or  peril  of  death, 
may  he  satisfied  before  death.^® 

Sec.  702.    Legacies  due  in  one  year. 

Legacies  are  due  and  deliverable  at  the  expiration  of  one 
year  after  the  testator's  decease.  Annuities  commence  at  the 
testator's  decease.^" 

Sec.  703.    Interest  on  legacies. 

Legacies  bear  interest  from  the  time  when  they  are  due 
and  payable,  except  that  legacies  for  maintenance,  or  to  the 
testator's  widow,  bear  interest  from  the  testator's  decease.-^ 

Sec.  704.     Intention  controls. 

The  four  preceding  sections  are  in  all  cases  to  be  controlled 
by  a  testator's  express  intention." 

Sec.  705.    Unnamed  executor. 

Where  it  appears  by  the  terms  of  a  will  that  it  was  the 
intention  of  the  testator  to  commit  the  execution  thereof 
and  the  administration  of  his  estate  to  any  person  as  executor, 
such  person,  although  not  named  executor,  is  entitled  to 
letters  testamentary  in  like  manner  as  if  he  had  been  named 
executor.2' 

18  Snyder,  8,971;  Wilson,  6,881;  Estate  of  Balke,  137  Cal.  429,  70 
California,  1,366  (Knrr),  identical;  Pac.  303;  Estate  of  James,  65  Cal. 
Estate  of  Brown,   143   Cal.   450,  77       25,  2  Pac.  494. 

Pac.   160.  22  Snyder,  8,975;  Wilson,  6,885. 

19  Snyder,  8,972;  Wilson,  6,882.  23  Snyder,    8,976;    Wilson,    6,886; 

20  Snyder,  8,973;'  Wilson,  6,883.  California,   1,371    (Kerr),  identical; 

21  Snyder,  8,974;  Wilson,  6,88  i;  Morffew  v.  San  Francisco  Co.,  107 
California,  1,369    (Kerr),  identical;  Cal.  587,  40  Pac.  810. 


§§  706-711  merwine's  trial  of  title  to  land. 


510 


Sec.  706.    Authority  void,  when. 

An  authority  to  an  executor  to  appoint  an  executor  is 
void.-* 

Sec.  707.    Power  of  executor  begins,  when. 

No  person  has  any  power,  as  an  executor,  until  he  qualifies, 
except  that  before  letters  have  been  issued,  he  may  pay 
funeral  charges  and  take  necessary  measures  for  the  preserva- 
tion of  the  estate.^^ 

Sec.  708.    Limitation  of  power. 

No  executor  of  an  executor,  as  such,  has  any  power  over 
the  estate  of  the  first  testator.-'^ 

Sec.  709.    Will  includes  codicil. 

The  term  ''will,"  as  used  in  this  chapter,  includes  all 
codicils  as  well  as  wills.-^ 

Sec.  710.    Law  of  place  governs,  when. 

Except  as  otherwise  provided,  the  validity  and  interpreta- 
tion of  wills  is  governed,  when  relating  to  real  property 
within  this  State,  by  the  law  of  this  State;  when  relating  to 
personal  property,  by  the  law  of  the  testator's  domicile.-^ 

Sec.  711.    Liability  of  devisees  and  legatees. 

Those  to  whom  property  is  given  by  will  are  liable  for  the 
obligations  of  the  testator  in  the  cases  and  to  the  extent 
prescribed  by  the  code  of  civil  procedure,  or  the  statutes  in 
such  cases  made  and  provided.^® 

24  Snyder,  8,977;   Wilson,  6,887.  26  Snyder,  8,979;  Wilson,  6,889. 

25  Snyder,  8,978;  Wilson,  6,888;  =7  Snyder,  8,980;  Wilson,  6,890. 
California,  1,373  (Kerr),  identical;  28  Snyder,  8.981;  Wilson,  6,891. 
Bowden  v.  Pierce,  73  Cal.  459,  14  29  Snyder,  8,982;  Wilson,  6,892. 
Pac.  302;  Pryor  v.  Downey,  50  Cal. 

388,    19    Am.    Eep.    656;    Larcp.    v. 
Casaneuava,  30  Cal.  560. 


511  DESCENT    AND    DISTRIBUTION.  §§712,  712a 

Sec.  712.  Will  may  be  recorded  with  like  effect  as  a  deed. 
Any  will,  devising  real  estate  or  any  interest  therein,  to- 
gether with  a  copy  of  the  probate  thereof,  duly  certified  by 
the  county  judge,  may  be  filed  and  recorded  in  the  office  of 
the  register  of  deeds,  with  like  effect  as  a  deed  duly  executed 
and  acknowledged.^" 

Sec.  712a.  Manner  in  which  will  may  be  made  by  fuU  blood 
Indian  of  the  five  civilized  tribes. 

Every  person  of  lawful  age  and  of  sound  mind  may  by 
last  will  and  testament  devise  and  bequeath  all  of  his  estate, 
real  and  personal,  and  all  interest  therein :  Provided,  That 
no  will  of  a  full  blood  Indian  devising  real  estate  shall  be 
valid,  if  such  last  will  and  testament  disinherits  the  parent, 
wife,  spouse,  or  children  of  such  full  blood  Indian,  unless 
acknowledged  before  and  approved  by  a  judge  of  the  United 
States  court  for  the  Indian  Territory,  or  a  United  States 
commissioner.^^ 

This  law  has  since  been  amended  so  as  to  permit  the  will 
to  be  also  acknowledged  and  approved  by  a  judge  of  any 
county  court  in  the  State  of  Oklahoma. ''- 

If  any  member  of  the  five  civilized  tribes  of  one-half  or 
more  Indian  blood  shall  die  leaving  issue  surviving,  born  since 
March  fourth,  nineteen  hundred  and  six,  the  homestead  of 
such  deceased  allotee  shall  remain  inalienable,  unless  re- 
strictions against  alienation  are  removed  therefrom  by  the 
secretary  of  the  interior  in  the  manner  provided  in  section  one 
hereof,  for  the  use  and  support  of  such  issue,  during  their 
life  or  lives,  until  April  twenty-sixth,  nineteen  hundred  and 
thirty-one ;  but  if  no  such  issue  survive,  then  such  allotee, 
if  an  adult,  may  dispose  of  his  homestead  by  will  free  from 
all  restrictions ;  if  this  be  not  done,  or  in  the  event  that  the 
issue  hereinbefore  provided  for  die  before  April  twenty-sixth, 

30  Snyder.    1,215;    Wilson,  908.  S2  Act      of     May     27,      1908,      35 

31  Act  April  26,  1906,  34  Stat.  L.       Stat.  L.  312. 
137. 


§  712a  MER wine's  trial  of  title  to  land.  512 

nineteen  hundred  and  thirty-one,  the  land  shall  then  descend 
to  the  heirs,  according  to  the  laws  of  descent  and  distribution 
of  the  State  of  Oklahoma,  free  from  all  restrictions.^'^ 

Chapters  forty-nine  and  one  hundred  and  fifty-five  of  the 
Mansfield's  Digest,  entitled  "Descents  and  Distribution"  and 
"Wills  and  Testaments,"  respectively,  as  modified  by  acts  of 
Congress,"*  were  in  force  in  the  Creek  nation  on  the  thirteenth 
day  of  November,  nineteen  hundred  and  five. 

There  being  no  children  born  to  a  noncitizen  Creek  allotee 
after  the  twenty-fifth  day  of  ]\Iay,  nineteen  hundred  and  one, 
she  was  entitled  to  dispose  of  her  homestead  by  will,  and  such 
devise  was  subject  to  the  imitations  contained  in  the  statute 
which  reads: 

When  any  person  shall  make  his  last  will  and  testament, 
and  omit  to  mention  the  name  of  a  child,  if  living,  or  the 
legal  representatives  of  such  child  born  and  living  at  the 
time  of  the  execution  of  such  will,  every  such  person  so  far 
as  regards  such  child  shall  be  deemed  to  have  died  intestate, 
and  such  child  shall  be  entitled  to  such  proportion,  share  and 
dividend  of  the  estate,  real  and  personal,  of  the  testator  as 
if  he  had  died  intestate;  and  such  child  shall  be  entitled  to 
recover  from  the  devisees  and  legatees  in  proportion  to  the 
amount  of  their  respective  shares,  and  the  court  exercising 
probate  jurisdiction  shall  have  power  to  decree  a  distribution 
of  such  estate  according  to  the  provisions  of  this  and  the 
preceding  sections. 

Where  such  allotee  executes  a  will  for  such  homestead, 
naming  therein  her  husband  as  sole  devisee,  and  dies  leaving 
surviving  her  an  only  child  by  a  former  husband,  born  prior 
to  the  twenty-fifth  day  of  May  nineteen  hundred  and  one, 
such  child  is  the  sole  heir  of  such  allotee,  and  is  entitled 
to  the  whole  of  her  estate  as  if  she  had  died  intestate.^'^ 

33  Act  of  May  27,  1908,  35  35  in  re  Brown's  Estate,  22  Okla. 
Stat.  L.  312.                                                  216,  97  Pac.  216. 

34  Act  of  May  2,  1890,  Chap.  182, 
26  Stat.  L.  81;  Act  of  June  30, 
1902,  Chap.   1,323,  32   Stat.  L.  500. 


513  DESCENT    AND    DISTRIBUTION.  §  712b 

Sec.  712b.    Will  by  Choctaw  and  Chickasaw. 

The  words  "alienable"  and  "inalienable,"  used  to  restrict 
the  disposition  of  lands  in  the  supplemental  agreement  with 
the  Chickasaws  and  Choctaws,^^  include  disposition  by  will. 

The  right  and  equity  of  an  enrolled  member  of  the  Chick- 
asaw nation,  who  died  intestate  in  nineteen  hundred  and 
three  before  receiving  an  allotment,  to  a  just  share  of  the  lands 
of  the  Chickasaws  and  Choctaws,  was  not  devisable,  and  the 
title  to  the  lands  subsequently  derived  therefrom  was  not 
affected  by  the  will. 

Prior  to  the  fourth  day  of  March,  nineteen  hundred  and 
six,  the  Chickasaw  Indians  had  the  right  to  dispose  of  their 
devisable  property  by  will  made  in  accordance  with  the  laws 
of  the  Chickasaws,  the  proper  Chickasaw  probate  court  had 
jurisdiction  to  probate  these  wills  and  its  judgments  are 
impervious  to  collateral  attack.^'^ 

36  Act    of    July    1,     1902,    Chap.  37  Hays    v.    Barringer,    168    Fed, 

1,362,  32  Stat.  L.  642.  Rep.  220. 


merwine's  trial  op  title  to  land. 


514 


6.    THE  PROCEDURE  IN  THE  PROBATE  AND 
CONTEST  OF  A  WILL. 


SECTION 

713.  Jurisdiction   ot    probate   court. 

714.  Proceedings   of  the   court,   how 

construed — Process,  how  is- 
sued and  served. 

715.  Under     substitution     of     juris- 

diction rights  remain  the 
same. 

716.  Where     wills     proved — Letters 

testamentary   granted. 

717.  Custodian      of       wills — Tliirty 

days — Must  deliver  to  whom. 

718.  Executor    or    other    person    in- 

terested may  petition  for 
probate  of  will. 

719.  What  petition  must  show. 

720.  When     executor     held     to     re- 

nounce his  right  to  letters. 

721.  Will     in     possession    of     third 

person — Procedure. 

722.  Petition  filed — Will  produced— 

Court  must  fix  day  for  hear- 
ing. 

723.  Notice  to  heirs — How  given. 

724.  Court  may   receive    petition  at 

chambers  or  out  of  term 
time. 

725.  Proof    of    service    of    notice — 

Hearing  proof  of  will. 

726.  Persons  interested  may  appear 

and  contest  will. 

727.  Procedure     where     no     person 

appears  to  contest. 

728.  Holographic  will — How  proved. 

729.  Written  grounds  of  opposition 

to  probate  must  be  filed. 

730.  The  court  must  give  in  writing 

findings  of  fact  and  conclu- 
sions of   law. 

731.  Subscribing  witnesses  who  must 

be  produced  and  examined — 
Proof  of  handwriting  ad- 
mitted. 

732.  Testimony  of  each  witness  re- 

duced to  writing. 


SECTION 

733.  Certificate   of   proof   and   facts 

found  to  be  issued,  if  court 
satisfied   upon   proof. 

734.  Certificates   together   with   evi- 

dence must  be  filed. 

735.  W'ill  duly   proved  and  allowed 

in  any  foreign  country  or 
state  may  be  recorded,  when. 

736.  Copy  of  will  duly  authenticated 

produced  by  executor  must 
be   filed — Petition    hearing. 

737.  Must   be   admitted   to   probate, 

when,  and  letters  testamen- 
tary issued. 

738.  Within  one  year  after  probate 

any  person  interested  may 
contest  same — Petition — Ma- 
terial facts  to  be  shown. 

739.  Executors     or      administrators 

and  all  legatees  and  devisees 
must  be  cited. 

740.  If    will    offered    by    petition    it 

must  show  all  required  in 
original  case. 

741.  After  service  of  citations,  court 

must  proceed  to  try  the 
issues — Judgment. 

742.  Revocation  being  made,  powers 

of  executors  cease — Acts  done 
in  good  faith,  executor  not 
liable. 

743.  Fees  and  expenses  paid  by  con- 

testing party  or  by  party  re- 
sisting revocation. 

744.  Probate    conclusive    after    one 

year. 

745.  Lost    or    destroyed    will — How 

probated. 

746.  Lost    or    destroyed    M'ill    must 

have  been  in  existence  at 
death  of  testator. 

747.  Lost     will     established — ^Provi- 

sions distinctly  stated  and 
certified — Filed  and  recorded 
— Letters  issued. 


515 


DESCENT    AND    DISTRIBUTION. 


SECTION 

748.  Pending    application    to    prove 

lost  or  destroyed  will,  court 
may  restrain   administrators. 

749.  Nuncupative  wills — Probate  of 

— Petition  —  Testamentary 
words. 

750.  Court  must  not  entertain  peti- 

tion until  lapse  of  fifteen 
days — Interested  parties  noti- 
fied. 

751.  Contest  of  probate  of  nuncupa- 

tive wills — How  conducted. 

752.  Court    admitting    will    to    pro- 

bate must  issue  letters. 

753.  Persons  competent  to  serve  as 

executor. 

754.  Who    may     file    objections    to 

granting  letters  testamentary. 

755.  No    executor    of    an    executor 

authorized  to  administer  es- 
tate of   first   testator. 

756.  Qualified     executor     may     act 

during  minority  or  absence 
of  another  executor. 

757.  When  all  executors  named  are 

not  appointed  those  appointed 
may  act — When  coexecutor 
may  act  for  all. 

758.  Administrators    with    will    an- 

nexed have  same  authority  as 
executors. 

759.  Form  of  letters. 

760.  Letters  of  administration  with 

will  annexed — Form  of. 

761.  Letters     must     be     signed     by 

judge  under  seal. 

762.  Form  for  will  leaving  estate  to 

wafe. 

763.  Another  foi'm  for  will   leaving 

estate  to  wife,  also  giving 
executrix  power  of  sale  and 
compromise. 

764.  Another  form  for  will   making 

specific  bequests  with  devise 
to  widow  for  life  or  during 
widowhood,  with  residuary 
clause. 

765.  Form  for  a  provision  in  a  will 

in  trust  for  wife  during  life 
with  remainder  to  children, 
advancements  to  be  deducted. 


SECTION 

766.  Form   for    provision    in   a  will 

giving  power  to  trustee  to 
continue  business. 

767.  Form  for  devise  of  real  estate 

to  wife  for  life  with  re- 
mainder to  brothers  and 
sisters. 

768.  Form    for  devise    to    wife    for 

life  with  remainder  to  chil- 
dren. 

769.  Skeleton    form    for    codicil    to 

last  will  and  testament. 

770.  Ihe  procedure  by  which  a  last 

will  and  testament  is  ad- 
mitted to  probate — The  form 
for  the  petition  for  probate 
of  a  will. 

771.  Form  for  order  of  hearing  peti- 

tion for  probate  of  a  will. 

772.  Form  for  notice  of  hearing  of 

probate  of  will. 

773.  iorm  for  proof  of  posting  and 

mailing  the  foregoing  notice. 

774.  Form  for  written  testimony  of 

subscribing  witness  to  last 
will   and  testament. 

775.  Form     for     protest     of     heirs 

against  allowing  probate  of 
last  will  and  testament. 

776.  Form     for     order     appointing 

guardian  ad  litem  for  infant 
heirs. 

777.  Form  for  the  protest  of  guard- 

ian ad  litem  of  minor  heirs 
against  the  probate  of  the 
alleged  last  will  and  testa- 
ment. 

778.  Form    for   ihe   answer    of   pro- 

ponents to  protestants  to 
will. 

779.  Form    for    order    of    court   ad- 

mitting will  to  probate. 

780.  Form    for    order    of    court   re- 

fusing to  probate  last  will 
and   testament. 

781.  The  procedure  by  which  a  will 

is  contested  after  the  same 
has  been  admitted  to  probate 
— The  petition  in  s'lch  case. 

782.  Form    for    praecipe    for    sum- 

mons in  the  action. 


§§713,714        mebwine's  trial  op  title  to  land.                516 

SECTION  SECTION 

783.  Form  for  agreement  by  parties  791.  Form    for    certificate   of    proof 

to     have    cause    referred     to  of    foreign   will, 

special    judge   for   the    deter-  792.  Form      for      order      admitting 

mination   of   the   question   as  foreign  will  to  probate. 

to  the   setting   aside   of   will.  793.  The  procedure  by  which  a  lost 

784.  Form  for  official  oath  of  special  will  is  admitted  to  probate — 

^ufjcre.  Form    for    petition. 

7S5.  Form  for  citation  for  executors  794.  I'orm     for     order     of     hearing 

to    appear   and    answer    peti-  petition  to  take  proof  of  lost 

tion.  ^vill. 

786.  Form    for    sheriff's    return    of  795.  Form  for  proof  of  publication. 

his  service  of  said  citation.  796.  Form    for    annexed    notice    by 

787.  Form   for   answer   to   the   peti-  publication. 

tion.  797.  Form    for    order    for    hearing 

788.  Form  for  reply  to  answer.  proof  of  lost  will. 

789.  Form  for  finding  of  facts  and  798.  Form  for  notice  of  the  hearing 

conclusions     of     law     of     the  of  the  proof  of  lost  will, 

special  judge.  799.  Form  for  proof  of   publication 

790.  Form  for  petition  for  the  pro-  of  the  foregoing  notice. 

bate  of  a  foreign  will.  800.  The    form    for    the    decree    of 

court  restoring  lost  will. 


Sec.  713.     Jurisdiction  of  probate  court. 

The  comity  court  has  jurisdiction,  and  the  judge  thereof, 
power,  which  must  be  exercised  in  the  cases,  and  in  the 
manner  prescribed  by  statute: 

1.  To  open  and  receive  proof  of  last  wills  and  testaments, 
and  to  admit  them  to  proof,  and  to  revoke  the  probate 
thereof,  and  to  allow  and  record  foreign  wills. 

2.  To  grant  letters  testamentary,  of  administration  and 
guardianship,  and  to  revoke  the  same.^ 

Sec.  714.  Proceedings  of  the  court,  how  construed — Process 
how  issued  and  served. 
The  proceedings  of  the  probate  court  are  construed  in  the 
same  manner,  and  with  like  intendments,  as  the  proceedings 
of  courts  of  general  jurisdiction,  and  to  its  records,  orders, 
judgments  and  decrees,  there  are  accorded  like  force,  effect 
and  legal  presumption  as  to  the  records,  orders,  judgments 
and  decrees  of  district  courts.^ 

1  Snyder,  5,136;    Wilson,   1,477.  2  Snyder,  5,137;   Wilson,  1,478. 


517  DESCENT    AND    DISTRIBUTION.  §§715,716 

All  process  issued  by  the  county  court  shall  be  served  in 
the  same  manner,  and  by  the  persons  and  officers  as  pro- 
vided for  the  service  of  process  of  the  district  court,  with  the 
same  fees.^ 

Sec.  715.     Under  substitution  of  jurisdiction  rights  remain  the 
same. 

Under  the  substitution  or  transfer  of  jurisdiction  provided 
in  Section  5939  (Snyder),  the  law  and  the  rights  of  parties 
shall  in  all  other  respects  be  and  remain  the  same;  and  if, 
before  the  issues  so  transferred  are  decided,  or  the  admin- 
istration of  such  estate  is  closed,  another  person  be  elected 
or  appointed  and  qualified  as  judge  of  the  county  court,  who 
is  not  disqualified  to  act  in  the  settlement  of  the  estate,  he 
must  resume  full  jurisdiction  of  the  case,  and  upon  notice 
of  that  office  from  the  county  court,  the  clerk  of  district  court 
must  return  all  papers  and  records  to  the  county  court.* 

Sec.  716.     Where  wills  proved — Letters  testamentary  granted. 
Wills  must  be  proved,  and  letters  testamentary  or  of  ad- 
ministration granted : 

1.  In  the  county  of  which  the  decedent  was  a  resident  at 
the  time  of  his  death,  in  whatever  place  he  may  have  died. 

2.  In  the  county  in  which  the  decedent  may  have  died, 
leaving  estate  therein,  he  not  being  a  resident  of  the  State. 

3.  In  the  county  in  which  any  part  of  the  estate  may  be, 
the  decedent  having  died  out  of  the  State,  and  not  resident 
thereof  at  the  time  of  his  death. 

4.  In  the  county  in  which  any  part  of  the  estate  may  be, 
the  decedent  not  being  a  resident  of  the  State,  but  dying 
M^thin  it,  and  not  leaving  estate  in  the  county  in  which  he 
died. 

5.  In  all  other  cases,  in  the  county  where  application  for 
letters  is  first  made.^ 


3  Snyder,   5,138;    Wilson,    1,479.  5  Snyder,   5,142;    Wilson,   1,483. 

4  Snyder,   5,140;    Wilson,   1,481. 


§§  717-719         merwine's  trial  of  title  to  land.  518 

Sec.  717.  Custodian  of  wills — Thirty  days — Must  deliver  to 
whom. 
Every  custodian  of  a  will,  within  thirty  days  after  receipt 
of  information  that  the  maker  thereof  is  dead,  must  deliver 
the  same  to  the  county  court  having  jurisdiction  of  the 
estate,  or  to  the  executor  named  therein.  A  failure  to  comply 
with  the  provisions  of  this  section  makes  the  person  failing 
responsible  for  all  damages  sustained  by  any  one  injured 
thereby.^ 

Sec.  718.  Executor  or  other  person  interested  may  petition 
for  probate  of  will. 
Any  executor,  devisee  or  legatee  named  in  any  will,  or  any 
other  person  interested  in  the  estate  may  at  any  time  after 
the  death  of  the  testator,  petition  the  court  having  juris- 
diction to  have  the  will  proved,  whether  the  same  be  in 
writing,  in  his  possession  or  not,  or  is  lost  or  destroyed,  or 
beyond  the  jurisdiction  of  the  State,  or  a  nuncupative  will.* 

Sec.  719.     What  petition  must  show. 

A  petition  for  the  probate  of  a  will  must  show: 

1.  The  jurisdictional  facts. 

2.  Whether  the  person  named  as  executor  consents  to  act, 
or  renounces  the  right  to  the  letters  testamentary. 

3.  The  names,  ages  and  residence  of  the  heirs  and  devisees 
of  the  decedent  so  far  as  known  to  the  petitioner. 

4.  The  probable  value  and  character  of  the  property  of  the 
estate. 

5.  The  name  of  the  person  for  whom  letters  testamentary 
are  prayed. 

No  defect  of  form,  or  in  the  statement  of  jurisdictional 
facts  actually  existing,  shall  make  void  the  ^irobate  of  a 
will.^ 

6  Snyder,   5,145;    Wilson,    1,486.  Estnto  of  Edwards,  154  Cal.  91,  97 

*  Snyder,    5,146;     Wilson,    1,487;       Pac.  23. 


California,   1,299    (Kerr),  identical 
Estate  of   Olmstead,    120   Cal.   447 


7  Snyder,*  5,147;     Wilson,     1,488; 
California,  1,300   (Kerr),  similar. 


519  DESCENT    AND    DISTRIBUTION.  §§  720-722 

Sec.  720.  When  executor  held  to  renounce  his  right  to  letters. 
If  the  person  named  in  a  will  as  executor,  for  thirty  days 
after  he  has  knowledge  of  the  death  of  the  testator,  and  that 
he  is  named  as  executor,  fails  to  petition  the  proper  court  for 
the  probate  of  the  will,  and  that  letters  testamentary  be 
issued  to  him,  he  may  be  held  to  have  renounced  his  right 
to  letters,  and  the  court  may  appoint  any  other  competent 
person  administrator,  unless  good  cause  for  delay  is  shown.^ 

Sec.  721.    Will  in  possession  of  third  person— Procedure. 

If  it  is  alleged  in  any  petition  that  the  will  is  in  the  pos- 
session of  a  third  person,  and  the  court  is  satisfied  that  the 
allegation  is  correct,  an  order  must  be  issued  and  served 
upon  the  person  having  possession  of  the  will,  requiring  him 
to  produce  it  in  the  court  at  the  time  named  in  the  order.  If 
he  has  possession  of  the  will  and  neglects  or  refuses  to  pro- 
duce it  in  obedience  to  the  order,  he  may  by  warrant  of  the 
court  be  committed  to  the  jail  of  the  county,  and  kept  in 
close  confinement  until  he  produces  it.** 

Sec.  722.    Petition  filed— Will  produced— Court  must  fix  day 
for  hearing. 

When  the  petition  is  filed  and  the  will  produced,  the  judge 
of  the  county  court  must  fix  a  day  for  hearing  the  petition 
for  the  probate  thereof,  not  less  than  ten  nor  more  than 
thirty  days  from  the  production  of  the  will,  and  he  shall 
cause  notice  of  such  hearing  to  be  given  by  posting  the 
same  in  three  of  the  most  public  places  in  the  county,  one 
of  which  shall  be  at  the  courthouse  in  which  said  hearing  is 
to  be  had,  and  by  mailing  copies  of  such  notice  to  all  persons 
interested  in  the  estate,  residents  of  this  State,  at  their  last 
known  place  of  residence.  If  the  postoffice  address  of  any 
of  the  heirs,  legatees   or  devisees   of  said  will  is  unknown, 

8  Snyder,    5,148;     Wilson,    1,489;       50  Pac.  399 ;  Estate  of  Von  Buncken, 
California,   1,301    (Kerr),  identical;        120  Cal.  343,  52   Pac.  819. 
Estate  of  McDonald,    118  Cal.  277,  9  Snyder,   5,149;    Wilson,   1,490. 


§§723,724         merwine's  trial  of  title  to  land.  520 

said  notice  shall  be  published  in  some  newspaper  of  general 
circulation  printed  in  the  county.  If  the  notice  be  published 
in  a  weekly  newspaper,  it  must  appear  therein  on  two  dif- 
ferent days,  and  said  hearing  shall  not  be  less  than  ten  days 
from  the  date  of  the  first  publication  of  such  notice,  and  if 
it  is  a  newspaper  published  oftener  than  once  a  week,  it  shall 
be  published  so  that  there  must  be  two  publications,  both  the 
first  and  the  last  days  being  included.  If  the  notice  is  by 
posting,  it  must  be  given  at  least  ten  days  before  the 
hearing.^** 

Sec.  723.    Notice  to  heirs — How  given. 

Written  or  printed  copies  of  the  notice  of  the  time  ap- 
pointed for  the  probate  of  the  will,  must  be  addressed  to 
the  heirs  of  the  testator  resident  in  the  State,  at  their  places 
of  residence,  if  known  to  the  petitioner,  and  deposited  in  the 
postoffice,  with  the  postage  thereon  prepaid  by  the  petitioner, 
at  least  ten  days  before  the  hearing;  the  notice  must  be 
issued  by  the  judge  over  the  seal  of  the  court.  Proof  of  the 
mailing  of  the  notice  must  be  made  at  the  hearing;  the  same 
notice  and  proof  of  service  thereof  on  the  person  named  as 
executor  must  be  made  if  he  be  not  the  petitioner;  also  on 
any  person  named  as  coexecutor,  not  petitioning,  if  their 
place  of  residence  be  known.^^ 

Sec.  724.     Court  may  receive  petitions  at  chambers  or  out  of 
term  time. 

The  judge  of  the  county  court  may,  out  of  term  time,  or 
at  chambers,  receive  petitions  for  the  probate  of  wills,  and 
make  and  issue  all  necessary  orders  and  Avrits  to  enforce  the 
production  of  wills  and  the  attendance  of  witnesses,  and  may 
appoint  special  terms  of  his  court  for  hearing  the  petitions, 
trials  of  issues,  and  admitting  wills  to  probate.^- 


10  Snyder,     .5,150;     Act     approved  n  Snyder,    5,151;    Wilson,    1,492; 

March    27,    1909;    California,    1,303       California,  1,304    (Kerr),  similar. 
(Kerr),    similar.  12  Snyder,  5,152;  Wilson,  1,493. 


521  DESCENT    AND    DISTRIBUTION.  §§  725-727 

Sec.  725.  Proof  of  service  of  notice — Hearing  proof  of  will. 
At  the  time  appointed  for  the  hearing,  or  at  the  time  to 
which  the  hearing  may  have  been  postponed  the  court,  unless 
the  parties  appear,  must  require  proof  that  the  notice  has 
been  given,  which  being  made,  the  court  must  hear  testimony 
in  proof  of  the  will.  If  such  notice  is  not  proved  to  have 
been  given,  or  if  from  any  other  cause  it  is  necessary,  the 
hearing  may  be  postponed  to  a  day  certain,  and  notice  to 
absentees  given  thereof,  as  original  notice  is  required  to  be 
given.  The  appearance  in  court  of  parties  interested  is  a 
waiver  of  notice.^^ 

Sec.  726.  Persons  interested  may  appear  and  contest  will. 
Any  person  interested  may  appear  and  contest  the  will. 
Devisees,  legatees  or  heirs  of  an  estate  may  contest  the  will 
through  their  guardians,  or  attorneys  appointed  by  them- 
selves, or  by  the  court  for  that  purpose ;  but  a  contest  made 
by  an  attorney  appointed  by  the  court  does  not  bar  a  con- 
test, after  probate,  by  the  party  so  represented,  if  commenced 
within  one  year  after  such  probate;  nor  does  the  nonappoint- 
ment  of  an  attorney  by  the  court  of  itself  invalidate  the 
probate  of  a  will.^* 

Sec.  727.    Procedure  where  no  person  appears  to  contest. 

If  no  person  appear  to  contest  the  probate  of  a  will,  the 
court  may  admit  it  to  probate  on  the  testimony  of  one  of  the 
subscribing  witnesses  only,  if  satisfied  from  the  testimony  of 
such  witness  that  the  will  was  executed  in  all  particulars  as 
required  by  law,  and  that  the  testator  was  of  sound  mind 
at  the  time  of  its  execution.^^ 


13  Snyder,    5,153;    Wilson,    1,494;  Ward  v.  Bd.  Com.,  12  Okla.  267,  70 
California,  1,306    (Kerr),  similar.  Pac.  378;  State  v.  McGlynn,  20  Cal. 

14  Snyder,    5,154;    Wilson,    1,495;  233,    81    Am.    Dec.    118;    Estate    of 
California,  1,307    (Kerr),  similar.  Warfield,   22    Cal.  51,   83   Am.   Dec. 

15  Snyder,  5,155;   Act  of  March  7,  49;  Tracy  v.  Muir,  151  Cal.  3C3,  90 
1909;      California,     1,308,     similar;  Pac.   832. 


§§  728-730  merwine's  trial  of  title  to  land.  522 

Sec.  728.     Holographic  will — How  proved. 

An  holographic  will  may  be  proved  in  the  same  manner 
that  other  private  writings  are  proved.^^ 

Sec.  729.    Written  grounds  of  opposition  to  protate  must  be 
filed. 

If  anyone  appears  to  contest  the  will,  he  must  file  written 
grounds  of  opposition  to  the  probate  thereof,  and  serve  a 
copy  on  the  petitioner  and  other  residents  of  the  county 
interested  in  the  estate,  and  any  one  or  more  of  whom  may 
demur  thereto  upon  any  of  the  grounds  of  demurrer  allowed 
by  law  in  civil  actions.  If  the  demurrer  be  sustained,  the 
court  must  allow  the  contestant  a  reasonable  time,  not  ex- 
ceeding ten  days,  within  which  to  amend  his  written  opposi- 
tion. If  the  demurrer  is  overruled,  the  petitioner  and  others 
interested  may  jointly  or  separately  answer  the  contestant's 
grounds,  traversing  or  otherwise  obviating  or  avoiding  the 
objections.     Any  issues  of  fact  thus  raised,  involving : 

1.  The  competency  of  the  decedent  to  make  a  last  will  and 
testament. 

2.  The  freedom  of  the  decedent  at  the  time  of  the  execu- 
tion of  the  will  from  duress,  menace,  fraud,  or  undue  in- 
fluence. 

3.  The  due  execution  and  attestation  of  the  will  by  the 
decedent  or  subscribing  witnesses ;  or, 

4.  Any  other  question  substantially  affecting  the  validity 
of  the  will  must  be  tried  and  determined  by  the  court. 

On  the  trial  the  contestant  is  plaintiff,  and  the  petitioner  is 
defendant.^^ 

Sec.  730.    The  court  must  give  in  writing  findings  of  fact  and 
conclusions  of  law. 
The  court,  after  hearing  the  case,  must  give  in  writing  the 
findings  of  fact  and  conclusions  of  law  upon  the  issues  suh- 

16  Snyder,    5,156;    Wilson,    1,497;  1 7  Snyder,    5,157;    Wilson,    1,498; 

California,  1,309    (Kerr),  similar.  California,  1,312    (Kerr),  similar. 


523  DESCENT    AND    DISTRIBUTION.  §§  731-733 

mitted,  and  upon  these  the  court  must  render  judgment, 
either  admitting  the  will  to  probate  or  rejecting  it.  In  either 
case,  the  proofs  of  the  subscribing  witnesses  must  be  reduced 
to  writing.  If  the  will  be  admitted  to  probate,  the  judgment, 
will  and  proofs  must  be  recorded.^^ 

Sec.  731.     Subscribing  witnesses  who  must  be  produced  and 
examined—Proof  of  handwriting  admitted. 

If  the  will  is  contested,  all  the  subscribing  witnesses  who 
are  present  in  the  county,  and  who  are  of  sound  mind,  must 
be  produced  and  examined;  and  the  death,  absence  or  in- 
sanity of  any  of  them  must  be  satisfactorily  shown  to  the 
court.  If  none  of  the  subscribing  witnesses  reside  in  the 
county,  and  are  not  present  at  the  time  appointed  for  proving 
the  will,  the  court  may  admit  the  testimony  of  other  wit- 
nesses to  prove  the  sanity  of  the  testator,  and  the  execution 
of  the  will;  and,  as  evidence  of  the  execution,  it  may  admit 
proof  of  the  handwriting  of  the  testator  and  of  the  sub- 
scribing witnesses,  or  any  of  them.^^ 

Sec.  732.    Testimony  of  each  witness  reduced  to  writing. 

The  testimony  of  each  witness,  reduced  to  writing  and 
signed  by  him,  shall  be  taken,  kept  and  filed  by  the  judge, 
and  shall  be  good  evidence  in  any  subsequent  contests  or  trial 
concerning  the  validity  of  the  will,  or  the  sufficiency  of  the 
proof  thereof,  if  the  witness  be  dead,  or  has  permanently 
removed  from  this  State.-^ 

Sec.  733.     Certificate  or  proof  and  facts  found  to  be  issued,  if 
court  satisfied  upon  proof. 
If  the  court  be  satisfied  upon  the  proof  taken  that  the  will 
was  duly  executed,  and  that  the  testator  was,  at  the  time  of 

18  Snyder,  5,158:  Wilson,  1,499.  20  Snyder.    5,160;    Wilson,    1,501; 

19  Snyder,    5.159;    Wilson,    1,500;  California,   1,316    (Kerr),  identical; 
California,    1,315    (Kerr),  identical;  Estate  of  Warfield,  22  Cal.  51. 
Estate   of    Tyler,    121    Cal.    405,   53 

Pac.    928;    Estate    of    McCarty,    58 
Cal.  335. 


§§  734-737  MER wine's  trial  of  title  to  land.  524 

the  execution  thereof  of  sound  and  disposing  mind,  and  not 
acting  under  duress,  menace,  fraud  or  undue  influence,  a 
certificate  of  the  proof  and  the  facts  so  found,  signed  by  the 
judge  and  attested  by  the  seal  of  the  court,  must  be  attached 
to  the  will.-^ 

Sec.  734.     Certificates  together  with  evidence  must  be  filed. 

The  will  and  the  certificate  of  the  proof  thereof,  together 
with  all  the  evidence  taken,  must  be  filed  "by  the  judge,  and 
recorded  by  him  in  a  book  to  be  provided,  at  the  charge  of 
the   county,   for  that  purpose.^^ 

Sec.    735.     Will    duly   proved    and   allowed   in    any   foreign 
country  or  State  may  be  recorded,  when. 

Every  will  duly  proved  and  allowed  in  any  other  of  the 
Territories,  or  in  any  of  the  United  States  or  the  District  of 
Columbia,  or  in  any  foreign  country  or  State,  may  be  allowed 
and  recorded  in  the  county  court  of  any  county  in  which  the 
testator  shall  have  left  any  estate,  or  any  estate  for  which 
claim  is  made.-^ 

Sec.  736.  Copy  of  will  duly  authenticated  produced  by  ex- 
ecutor must  be  filed — Petition  hearing. 
When  a  copy  of  the  will  and  the  probate  thereof,  duly 
authenticated,  shall  be  produced  by  the  executor,  or  by  any 
other  person  interested  in  the  will,  with  a  petition  for  letters, 
the  same  must  be  filed,  and  the  court  or  judge  must  appoint  a 
time  for  the  hearing,  notice  whereof  must  be  given  as  pro- 
vided for  an  original  petition  for  the  probate  of  a  will.-* 

Sec.  737.    Must  be  admitted  to  probate  when,  and  letters  tes- 
tamentary  issued. 
If,  on  the  hearing,  it  appears  upon  the  face  of  the  record 
that  the  will  has  been  proved,  allowed  and  admitted  to  pro- 

2iSnydpr,  5J61;  Wil«on,  1,502.  24  Snyder,    5,164;    Wilson,    1,505; 

22  Snyder,  5,162;  Wilson,  1,503.  California,  1,323    (Kerr),  similar. 

23  Snyder,    5,163;    Wilson,    1,504; 
California,  1,322    (Kerr),  similar. 


525  DESCENT    AND    DISTRIBUTION.  §  738 

bate,  in  any  other  of  the  Territories,  or  any  State  of  the 
United  States,  the  District  of  Columbia,  or  in  any  foreign 
country  or  State,  and  that  it  was  executed  according  to  the 
law  of  the  place  in  which  the  same  was  made,  or  in  which 
the  testator  was  at  the  time  domiciled,  or  in  conformity  with 
the  laws  of  this  State,  it  must  be  admitted  to  probate,  be 
certified  in  like  manner  according  to  the  facts,  and  recorded, 
and  have  the  same  force  and  effect  as  a  will  first  admitted 
to  probate  in  this  State,  and  letters  testamentary  or  of  admin- 
istration issued  thereon.^^ 


Sec.  738.    Within  one  year  after  probate  any  person  inter- 
ested may  contest  same — Petition — Material  facts 
to  be  shown. 
When  a  will  has  been  admitted  to  probate,  any  person  in- 
terested therein  may  at  any  time  within  one  year  after  such 
probate,  contest  the  same  or  the  validity  of  the  will.     For 
that  purpose  he  must  file  in  the  court  in  which  the  will  was 
proved  a  sworn  petition  in  writing  containing  his  allegations, 
that   evidence  discovered  since  the  probate   of  the  will,  the 
material  facts  of  which  must  be  set  forth,  shows : 

1.  That  a  will  of  a  later  date  than  the  one  proved  by  the 
decedent,  revoking  or  changing  the  former  will,  has  been  dis- 
covered, and  is  offered;  or, 

2.  That  some  jurisdictional  fact  was  wanting  in  the  former 
probate ;  or, 

3.  That  the  testator  was  not  competent,  free  from  duress, 
menace,  fraud  or  undue  influence  when  the  will  allowed  was 
made ;  or, 

4.  That  the  former  will  was  not  duly  executed  and  at- 
tested. =^« 


25  Snyder,    5,165;    Wilson,    1,506;  20  Snyder,    5,166;    Wilson,    1,507; 

California,  1,324   (Kerr),  similar.  California,  1,327    (Kerr),  similar. 


§§  739-741  merwine's  trial  of  title  to  land.  526 

Sec.  739.  Executors  or  administrators  and  all  legatees  and 
devisees  must  be  cited. 
Upon  filing  the  petition,  a  citation  must  be  issued  to  the 
executors  of  the  will,  or  to  the  administrators  with  the  will 
annexed,  and  to  all  the  legatees  and  devisees  mentioned  in  the 
will,  and  heirs  residing  in  the  State,  so  far  as  known  to  the 
petitioner,  or  to  their  guardian,  if  any  of  them  are  minors, 
or  their  personal  representatives,  if  any  of  them  are  dead, 
requiring  them  to  appear  before  the  court  on  some  day  of  a 
regular  term  therein  specified,  to  show  cause  why  the  probate 
of  the  will  should  not  be  revoked.-^ 

Sec.  740.     If  will  offered  by  petition,  it  must  show  all  required 
in  original  case. 

If  another  wall  be  offered  by  the  petition,  it  must  show  all 
that  is  required  in  the  original  case  of  a  petition  for  the 
probate  of  a  will,  and  like  notices  must  be  served  in  the 
same  manner,  and  upon  all  the  parties,  as  required  before 
the  hearing  of  proof  of  any  will  originally:  Provided,  That 
such  notices  need  not  be  served  on  any  persons  upon  whom 
the  citation  required  in  the  preceding  section  is  to  be 
served.^^ 

Sec.  741.  After  service  of  citations,  court  must  proceed  to 
try  the  issues — Judgment. 
At  the  time  appointed  for  showing  cause,  or  at  any  time 
to  which  the  hearing  is  postponed,  personal  service  of  the 
citations  having  been  made  upon  the  persons  named  therein, 
and  the  required  publication,  posting  and  service  of  the 
notices  having  been  made,  and  all  duly  proved,  the  court 
must  proceed  to  try  the  issues  joined  in  the  same  manner  as 
in  an  original  contest  of  a  will.  If  upon  hearing  the  proofs 
of  the  parties  the  court  shall  decide  that  1he  will  is,  for  any 
of  the  reasons  alleged,  invalid,   or  that  it  is  not  proved  to 

27  Snyder,    5,167;    Wilson,    1,508;  28  Snyder,  5,168;  Wilson,  1,509. 

California,  1,328    (Kerr),  similar. 


527  DESCENT    AND    DISTRIBUTION.  §§  742-744 

be  the  last  will  of  the  testator,  the  probate  must  be  annulled 
and  revoked;  and  if  the  court  shall  decide  that  the  new  will 
is  valid,  it  may  admit  the  same  to  probate  in  the  same  manner 
as  originally  upon  the  probate  of  a  contested  will.-'* 

Sec.  742.    Revocation  being  made,  powers  of  executors  cease 
— Acts  done  in  good  faith,  executor  not  liable. 

Upon  the  revocation  being  made,  the  powers  of  the  executor 
or  administrator  with  the  will  annexed,  must  cease ;  but  such 
executor  or  administrator  shall  not  be  liable  for  any  act  done 
in  good  faith  previous  to  the  revocation.^** 

Sec.  743.    Pees  and  expenses  paid  by  contesting  party  or  by 
party  resisting  revocation. 

The  fees  and  expenses  must  be  paid  by  the  party  contesting 
the  validity  or  probate  of  the  will,  if  the  will  in  probate  be 
confirmed.  If  the  probate  be  annulled  and  revoked,  the 
costs  must  be  paid  by  the  party  who  resisted  the  revocation, 
or  out  of  the  property  of  the  decedent,  as  the  court  directs.^^ 

Sec.  744.    Probate  conclusive  after  one  year. 

If  no  person,  within  one  year  after  the  probate  of  a  will, 
contests  the  same  or  the  validity  thereof,  the  probate  of  the 
will  is  conclusive,  saving  to  infants  and  persons  of  unsound 
mind,  a  like  period  of  one  year  after  their  respective  dis- 
abilities are  removed.^^ 


29  Snyder,    5,169;    Wilson,    1,510;  si  Snyder,    5,171;    Wilson,    1,512; 
California,  1,329    (Kerr),  similar.  California,  1,332    (Kerr),  identical; 

30  Snyder,  5,170;  Wilson,  1,511;  Estate  of  Crozier,  65  Cal.  332,  4 
California,  1,331  (Kerr),  identical;  Pac.  109;  Goldtree  v.  McAlister,  83 
Estate  of  Graves,  6  Cal.  App.  716,  Cal.  93,  24  Pac.  801;  Estate  of 
96  Pac.  729;  Estate  of  Crozier,  65  McKinney,  112  Cal.  447,  44  Pac. 
Cal.  332,  4  Pac.  109;  Estate  of  743;  Estate  of  Bump,  152  Cal.  271, 
Freud,  73  Cal.  555,  15  Pac.  135;  92  Pac.  642;  Estate  of  Olmstead, 
Clements  v.  McGinn,  33  Pac.  920;  120  Cal.  447,  52  Pac.  804. 
Samson  v.  Samson,  64  Cal.  327,  30  32  Snyder,  5,172;  Wilson,  1,513; 
Pac.  979.  California,  1,333    (Kerr),  identical; 


§§,745-747        merwine's  trial  of  title  to  land.  528 

Sec.  745.    Lost  or  destroyed  will — How  probated. 

Whenever  any  will  is  lost  or  destroyed,  the  county  court 
must  take  proof  of  the  execution  and  validity  thereof,  and 
establish  the  same,  notice  to  all  persons  interested  being  first 
given,  as  prescribed  in  regard  to  proofs  of  wills  in  other  cases. 
AU  the  testimony  given  must  be  reduced  to  writing,  signed 
by  the  witnesses,  filed  and  preserved.^^ 

Sec.  746.  Lost  or  destroyed  will  must  have  been  in  existence 
at  death  of  testator. 
No  will  shall  be  proved  as  a  lost  or  destroyed  will,  unless 
the  same  is  proved  to  have  been  in  existence  at  the  time  of 
the  death  of  the  testator,  or  is  shown  to  have  been  fraud- 
ulently destroyed  in  the  lifetime  of  the  testator,  nor  unless 
its  provisions  are  clearly  and  distinctly  proved  by  at  least 
two  credible  witnesses.^* 

Sec.  747.  Lost  will  established — Provisions  distinctly  stated 
and  certified — Filed  and  recorded — Letters 
issued. 

When  a  lost  will  is  established,  the  provisions  thereof  must 
be  distinctly  stated  and  certified  by  the  judge  of  the  county 
court,  under  his  hand  and  the  seal  of  the  court,  and  the  certifi- 
cate must  be  filed  and  recorded  as  other  wills  are  filed  and 
recorded,  and  letters  testamentary  or  of  administration  with 
the  will  annexed,  must  be  issued  thereon  in  the  same  manner  as 
upon  wills,  produced  and  duly  proved;  the  testimony  must  be 
reduced  to  writing,  signed,  certified,  and  filed  as  in  other 
cases,  and  shall  have  the  same  effect  as  evidence  as  provided 
in  sections  from  5157  to  5162,  inclusive.^^ 


Samson  v.  Samson,  64  Cal.  327,  30  33  Snyder,  5,173;  Wilson,  1,514. 

Pac.   979;    Clements   v.   McGinn,   33  34  Snyder,    5,174;    Wilson,    1,515; 

Pac.  920;   Estate  of  Freud,  73   Cal.       California,  1,339    (Kerr),  similar. 
555,  15  Pac.  135;   Estate  of  Pritch-  35  Snyder,  5,175;  Wilson,  1,516. 

ett,  51   Cal.  568,  52  Pac.  94;  Estate 
of   Maxwell,    74    Cal.    384,    16   Pac. 
206. 


529  DESCENT    AND   DISTRIBUTION.  §§  748-750 

Sec.  748.  Pending  application  to  prove  lost  or  destroyed  will, 
court  may  restrain  administrators. 
If  before  or  during  the  pendency  of  an  application  to 
prove  a  lost  or  destroyed  will,  letters  of  administration  are 
granted  on  the  estate  of  the  testator,  or  letters  testamentary 
of  any  previous  will  of  the  testator  are  granted,  the  court 
may  restrain  the  administrators  or  executors  so  appointed 
from  any  acts  or  proceedings  which  would  be  injurious  to  the 
legatees  or  devisees  claiming  under  the  lost  or  destroyed 
wilL^« 

Sec.  749.     Nuncupative    wills — Probate    of— Petition — Testa- 
mentary words. 

Nuncupative  wills  may  at  any  time,  within  six  months  after 
the  testamentary  words  are  spoken  by  the  decedent,  be 
admitted  to  probate  on  petition  and  notice  as  provided  for 
the  probate  of  wills  executed  in  writing.  The  petition,  in 
addition  to  the  jurisdictional  facts,  must  allege  that  the  tes- 
tamentary words  or  the  substance  thereof,  were  reduced  to 
writing  within  thirty  days  after  they  were  spoken,  which 
writing  must  accompany  the  petition.^^ 

Sec.  750.     Court  must  not  entertain  petition  until  lapse  ol 
fifteen  days — Interested  parties  notified. 

The  county  court  must  not  receive  or  entertain  a  petition 
for  the  probate  of  a  nuncupative  will  until  the  lapse  of 
fifteen  days  from  the  death  of  the  testator,  nor  must  such  peti- 
tion be  at  any  time  acted  on,  unless  the  testamentary  words 
are,  or  their  substance  is,  reduced  to  writing,  and  filed  with 
the  petition,  nor  until  the  surviving  husband  or  wife,  if  any, 
and  all  other  persons  resident  in  the  State  or  county,  inter- 
ested in  the  estate,  are  notified,  as  provided  in  sections  5145 
to  5156,  inclusive."^ 

36  Snyder,  5,176;  Wilson,  1,517.  38  Snyder,  5,178;   Wilson,  1,519= 

3T  Snyder,  5,177;   Wilson,  1,518. 


§§  751-754         mebwine's  trial  of  title  to  land.  530 

Sec.  751.     Contest  of  probate  or  nuncupative  wills — How  con- 
ducted. 

Contests  of  the  probate  of  nuncupative  wills  and  appoint- 
ments of  executors  and  administrators  of  the  estate  devised 
thereby  must  be  had,  conducted  and  made  as  hereinbefore 
provided  in  cases  of  the  probate  of  written  wills:  Provided, 
that  double  the  period  allowed  for  the  petition  of  revocation 
of  the  probate  of  a  written  will  shall  be  allowed  in  which 
to  petition  for  the  revocation  and  annulling  of  the  nuncupa- 
tive will."® 

Sec.  752.     Court  admitting  will  to  probate  must  issue  letters. 

The  court  admitting  the  will  to  probate  after  the  same  is 
proved  and  allowed,  must  issue  letters  thereon  to  the  persons 
named  therein  as  executors,  who  are  competent  to  discharge 
the  trust,  who  must  appear  and  qualify  unless  objections  be 
made  as  provided  in  the  second  section  following.*"* 

Sec.  753.    Persons  competent  to  serve  as  executor. 

No  person  is  competent  to  serve  as  executor  who  at  the 
time  the  will  is  admitted  to  probate,  is: 

1.  Under  the  age  of  majority. 

2.  Convicted  of  an  infamous  crime. 

3.  Adjudged  by  the  court  incompetent  to  execute  the  du- 
ties of  the  trust  by  reason  of  drunkenness,  improvidence,  or 
want  of  understanding  and  integrity. 

If  the  sole  executor  or  all  the  executors  are  incompetent, 
or  renounce  or  fail  to  apply  for  letters,  or  to  appear  and 
qualify,  letters  of  administration  with  the  will  annexed  must 
be  issued.*^ 

Sec.  754.    Who  may  file  objections  to  granting  letters  tes- 
tamentary. 

Any  person  interested  in  a  will  may  file  objections  in  writ- 
ing, to   granting  letters  testamentary  to  the  persons  named 

39  Snvdcr,  5,179;  Wilson,  1,520.  «  Snyder,    5,181;    Wilson,    1,522; 

40  Snyder,    5,180;    Wilson,    1,521;       California,  1,350   ( Kerr ),  similar. 
California,  1,349    (Kerr),  similar. 


531  DESCENT    AND   DISTRIBUTION.  §§  755-757 

as  executors,  or  any  of  them;  and  the  objections  must  be 
heard  and  determined  by  the  court.  A  petition  may,  at  the 
same  time,  be  filed  for  letters  of  administration,  with  will 
annexed.*^ 

Sec.  755.    No  executor  of  an  executor  authorized  to  admin- 
ister estate  of  first  testator. 

No  executor  of  an  executor  shall,  as  such,  be  authorized  to 
administer  on  the  estate  of  the  first  testator,  but  on  the 
death  of  the  sole  or  surviving  executor  of  any  last  will,  letters 
of  administration  with  the  will  annexed,  of  the  estate  of  the 
first  testator,  left  unadministered,  must  be  issued.** 

Sec.  756.  Qualified  executor  may  act  during  minority  or  ab- 
sence of  another  executor. 
"Where  a  person  absent  from  the  State,  or  a  minor,  is  named 
executor,  and  there  is  another  executor  who  accepts  the  trust 
and  qualifies,  the  latter  may  have  letters  testamentary  and 
administer  the  estate  until  the  return  of  the  absentee,  or  the 
majority  of  the  minor,  who  may  then  be  admitted  as  joint 
executor.  If  there  is  no  other  executor,  letters  of  admin- 
istration with  the  will  annexed,  must  be  granted;  but  the 
court  may,  in  its  discretion,  revoke  them  on  the  return  of 
the  absent  executor,  or  the  arrival  of  the  minor  at  the  age 
of  majority.** 

Sec.  757.    When  all  executors  named  are  not  appointed,  those 

appointed  may  act — When  coexecutor  may  act 

for  all. 

"When  all  the  executors  named  are  not  appointed  by  the 

court,  those  appointed  have  the  same  authority  to  perform 

all   the   acts  and   discharge   the   trust  required   by   the   will, 

42  Snyder,  5,182;  Wilson,  1,523.  44  Snyder,    5,185;    Wilson,    1,526; 

43  Snyder,  5,184;  Wilson,  1,525;  California,  1,354  (Kerr),  identical; 
California,  1,353  (Kerr),  identical;  Estate  of  Brown,  80  Cal.  381,  Z2 
Wetzler  v.  Fitch,   52   Cal.   638.  Pac.  233;  Estate  of  Kelley,  122  Cal, 

379,  55  Pac.   136. 


§§  758,  759         MBR wine's  trial  of  title  to  land.  532 

as  effectually  for  every  purpose  as  if  all  were  appointed  and 
should  act  together;  when  there  are  two  executors  or  admin- 
istrators, the  act  of  one  alone  shall  be  effectual,  if  the  other 
is  absent  from  the  State,  or  laboring  under  any  legal  dis- 
ability from  serving,  or  if  he  has  given  his  coexecutor  or 
coadministrator  authority,  in  writing,-  to  act  for  both ;  and 
when  there  are  more  than  two  executors  or  administrators, 
the  act  of  a  majority  of  them  is  valid.^^ 

Sec.  758.  Administrators  with  will  annexed  have  same  au- 
thority as  executors. 
Administrators  with  the  will  annexed  have  the  same  au- 
thority over  the  estates  which  executors  named  in  the  will 
would  have,  and  their  acts  are  effectual  for  all  purposes. 
Their  letters  must  be  signed  by  the  judge  of  the  county 
court,  and  bear  the  seal  thereof.*" 

Sec.  759.    Form  of  letters. 

Letters  testamentary  must  be  substantially  in  the  following 
form: 
State  of  Oklahoma,  County,  ss. : 

The  last  will  of  A.  B.,  deceased,  a  copy  of  which  is  hereto  an- 
nexed, having  been  proved  and  recorded  in  the  county  court  of 

the  county  of  ,  C.  D.,  who  is  named  therein,  is  hereby 

appointed  executor. 

Witness,  G.  H.,  judge  of  the  county  court  of  the  county  of 

,  with  the  seal  of  the  court  affixed,  the  day  of 

,  A.  D.  19—.  , 

(Seal  and  Official  Signature  of  the  Judge. )*^ 


45  Snyder,    5,186;    Wilson,    1,527;  157,    11    L.    R.    A.    2G4;    Estate    of 

California,  1,355    (Kerr),  identical;  Sanderson,  74  Cal.  199,  15  Pac.  753; 

Willis     V.     Farley,     24     Cal.     490;  Estate  of  Scott,  1  Cal.  App.  740,  83 

Estate  of   Carver,    123  Cal.   102,   55  Pac.  85. 

Pac.    770;    Hope   v.   Jones,   24   Cal.  46  Snyder,    5,187;    Wilson,    1,528; 

90;   Avila  v.  Burnett,  33   Cal.   658;  California,  1,356    (Kerr),  similar. 
Estate  of  Osborn,  87  Cal.  1,  25  Pac.  4r  Snyder,  5JS8;  Wilson,  1,529. 


533  DESCENT    AND    DISTRIBUTION.  §§  760-762 

Sec.    760.    Letters    of    administrator    with    will    annexed — 
Form  of. 

Letters  of  administration  with  will  annexed  must  be  sub- 
stantially in  the  following  form: 
State  of  Oklahoma, County,  ss. : 

The  last  will  of  A.  B.,  deceased,  a  copy  of  which  is  hereto 
annexed,  having  been  proved  and  recorded  in  the  county  court 

of  the  county  of  ,  and  there  being  no  executor  named  in 

the  will  (or,  as  the  case  may  be),  C.  D.  is  hereby  appointed  ad- 
ministrator, with  the  will  annexed. 

Witness,  G.  H.,  judge  of  the  county  court  of  the  county  of 

,  with  the  seal  of  the  court  affixed,  the  day  of 

,  A.  D.  19—.  , 

(Seal  and  Official  Signature  of  the  Judge. )^« 

Sec.  761.    Letters  must  be  signed  by  judge  under  seal. 

Letters   of   administration   must   be    signed   by   the   judge, 
under  the  seal  of  the  court,  and  substantially  in  the  following 
form: 
State  of  Oklahoma, County,  ss. : 

C.  D.  is  hereby  appointed  administrator  of  the  estate  of  A.  B., 
deceased. 

Witness,  G.  H.,  judge  of  the  county  court  of  the  county  of 

,  with  the  seal  thereof  affixed,  the day  of , 

A.  D.  19—.  , 


(Seal  and  the  Official  Signature  of  the  Judge. )*« 
Sec.  762.    Form  for  will  leaving  estate  to  wife. 

LAST  WILL  AND  TESTAMENT. 

I,  ,  of  the  of  ,  county  of  and 

State  of  Oklahoma,  being  of  full  age  and  sound  mind  and  mem- 
ory, do  make,  publish  and  declare  this  to  be  my  last  will  and 
testament,  hereby  revoking  all  former  wills  by  me  heretofore 
made: 

48  Snyder,  5,189;   Wilson,  1,530.  49  Snyder,    5,190;    Wilson,    1,531; 

California,  1,362    (Kerr),  similar. 


§  763  merwine's  trial  of  title  to  land.  534 

Item  I.  I  direct  that  all  my  just  debts  and  funeral  expenses 
be  paid  out  of  my  estate  as  soon  as  practicable  after  the  time  of 
my  decease. 

Item  II.  All  the  property,  real  and  personal,  of  every  kind 
and  description,  wheresoever  situated,  which  I  may  own  or  have 
the  right  to  dispose  of  at  the  time  of  my  decease,  I  give,  bequeath 
and  devise  to  my  wife,  ,  absolutely  and  in  fee  simple. 

Item  III.    I  make,  nominate  and  appoint  my  said  wife, , 

to  be  executrix  of  this  my  last  will  and  testament,  and  I  request 
that  no  bond  be  required  of  her  as  such,  and  I  further  request 
that  no  inventory  of  my  estate  be  made  or  taken  in  so  far  as  the 
same  may  be  lawfully  omitted. 

In  Testimony  Whereof,  I  have  hereunto  affixed  my  hand 
and  seal  this  day  of ,  19 — . 

r  Seal.  1  . 

Signed  and  acknowledged  by  the  said  as  and  for  his 

last  will  and  testament  in  our  presence,  and  by  us  subscribed 
as  attesting  witnesses  in  his  presence,  and  at  his  request  and 
in  the  presence  of  each  other,  this  day  of ,  19 — . 


Residing  at 


Residing  at 


Sec.  763.    Another  form  for  will  leaving  estate  to  wife,  also 
giving  executrix  power  of  sale  and  compromise. 

LAST  WILL  AND  TESTAMENT. 

I, ,  of  the ,  county  of and  State  of  Okla- 
homa, do  make  and  publish  the  following  as  my  last  will  and 
testament,  hereby  revoking  all  former  wills  made  by  me. 

Item  I.  I  direct  that  all  my  debts  and  funeral  expenses  be 
first  paid  out  of  my  estate. 


535  DESCENT    AND    DISTRIBUTION.  §  763 

Item  II.    Reposing  full  confidence  in  my  beloved  wife, , 

and  knowing  that  the  welfare  of  our  children, and 


can  be  fully  intrusted  to  her,  I  give,  devise  and  bequeath  all  my 
estate,  real,  personal  and  mixed,  wheresoever  situated,  to  my 
said  wife,  ,  and  to  her  heirs  forever. 

Item   III.      I   hereby  nominate   and   appoint   my  said  wife, 

,  the  executrix  of  this,  my  last  will  and  testament,  and 

hereby  authorize  and  empower  my  said  executrix  to  compound, 
compromise,  settle  and  adjust  all  debts  and  claims  which  may  be 
presented  against  my  estate,  or  which  may  be  due  to  my  estate; 
and  to  sell,  at  private  or  public  sale,  at  such  prices  and  upon 
such  terms  of  credit  or  otherwise,  as  she  may  deem  best,  the 
whole  or  any  part  of  my  real  estate  or  personal  property,  and  to 
execute,  acknowledge  and  deliver  deeds  and  other  proper  instru- 
ments of  conveyance  thereof,  to  the  purchaser  or  purchasers, 
as  fully  and  completely  as  I  could  do  if  I  were  living,  and  were 
to  execute,  acknowledge  and  deliver  such  instruments  of  con- 
veyance and  transfer,  hereby  relieving  the  purchaser  thereof 
from  seeing  to  the  proper  application  of  the  purchase  money 
thereof. 

I  direct  that  no  bond  be  required  of  my  said  executrix,  and 
that  no  inventory  or  appraisal  of  my  estate  be  made  so  far  as 
the  law  will  permit. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal 
at ,  Oklahoma,  this day  of ,  19 — . 

[Seal.]  . 

Signed,  sealed  and  acknowledged  by  the  said ,  to  be  his 

last  will  and  testament,  before  us  and  in  our  presence,  and  by 
us  signed  as  witnesses  at  his  request  and  in  his  presence,  and  in 

the  presence  of  each  other,  at ,  Oklahoma,  on  this 

day  of ,  19—. 


Residing  at  ,  Oklalioma. 


Residing  at  ,  Oklahoma. 


§  764  MERWINE  'S   TRIAL    OF   TITLE   TO   LAND.  536 

Sec.  764.  Another  form  for  will  making  specific  bequests 
with  devise  to  widow  for  life  or  during  widow- 
hood, with  residuary  clause. 

LAST  WILL  AND  TESTAMENT. 
I, ,  of  the of ,  county  of and  State 


of  Oklahoma,  being  of  full  age  and  sound  mind  and  memory, 
do  make,  publish  and  declare  this  to  be  my  last  will  and  testa- 
ment, hereby  revoking  all  wills  by  me  heretofore  made. 

Item  I.  I  direct  that  all  my  just  debts  and  funeral  expenses 
be  paid  out  of  my  estate  as  soon  as  practicable  after  the  time  of 
my  decease. 

Item  II.    I  give  and  bequeath  to  my  sister, ,  of , 

the  sum  of  $ ,  in  cash. 

Item  III.    I  give  and  bequeath  to College,  of  , 

the  sum  of  $ ,  in  cash,  to  be  applied  for  the  general  pur- 
poses of  such  college. 

Item  IV.  I  give  and  bequeath  to  my  wife,  ,  all  house- 
hold furniture,  books,  pictures  and  all  other  household  effects 
which  shall  be  in  and  about  my  residence  at  the  time  of  my 
decease. 

Item  V.     I  give  and  devise  to  my  wife,  ,  during  her 

natural  life,  or  so  long  as  she  remains  my  widow,  my  real  prop- 
erty situated  in  the  county  of  ,  State  of  Oklahoma,  and 

more  particularly  described  as  follows,  to-wit:  (Here  specifically 

describe  same.)     After  the  death  of  my  said  wife, ,  or  in 

event  of  her  remarriage,  I  give  and  devise  said  real  estate  to 

my  sister  of ,  her  heirs  and  assigns  forever. 

Item  VI.  All  the  residue  of  my  estate,  real  and  personal,  of 
every  kind  and  description,  wheresoever  situated,  which  I  may 
own  or  have  the  right  to  dispose  of  at  the  time  of  my  death,  I 

give  and  devise  to  and  ,  absolutely  and  in  fee 

simple. 

Item  VII.    I  make,  nominate  and  appoint and 

to  be  executors  of  this,  my  last  will  and  testament. 


537  DESCENT    AND    DISTRIBUTION.  §  765 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and 
seal  at ,  Oklahoma,  this  day  of ,  19 — . 

[Seal.]  . 

Signed  and  acknowledged  by  the  said  as  and  for  his 

last  will  and  testament  in  our  presence,  and  by  us  subscribed 
as  attesting  witnesses  in  his  presence  and  at  his  request,  and  in 
the  presence  of  each  other,  this day  of ,  19 — . 


Residing  at 


Residing  at 


Sec.  765.  Form  for  a  provision  in  a  will  in  trust  for  wife 
during  life  with  remainder  to  children,  advance- 
ments to  be  deducted. 

Item .  I  give,  devise  and  bequeath  to  my  executor,  here- 
after named,  in  trust,  all  of  my  property,  real  and  personal,  of 
every  kind  and  description,  wheresoever  situated,  to  be  held  and 
used  by  him  during  the  life  of  my  wife,  ,  upon  the  fol- 
lowing trusts,  to-wit : 

I  give,  devise  and  bequeath  to  my  beloved  wife,  should  she 
need  or  desire  the  same,  the  entire  net  income  from  all  of  my 
estate,  so  long  as  she  may  live. 

If,  for  any  reason,  the  net  income  of  my  estate  shall  not  be 
sufficient  to  amply  support  my  said  wife,  then  my  said  executor 
is  hereby  authorized,  in  the  exercise  of  his  discretion,  to  use  so 
much  of  the  principal  of  my  estate  as  shall  be  needed  for  such 
purpose. 

I  have  made  gifts  and  advances  from  time  to  time  to  my  chil- 
dren,   ,  and  ,  all  of  which  gifts  and  ad- 
vances, whether  now  or  hereafter  made  by  me,  as  they  appear 

in  a  book  kept  by  me,  now  in  the  possession  of  my  son,  

shall  be  considered  as  advances  to  my  said  cliildren,  and  they 
shall  each  and  all  be  bound  thereby,  and  I  fully  authorize  and 
empower  my  said  executor,  whenever  he  may  deem  it  prudent 
so  to  do  from  the  income  of  my  estate,  if  not  all  used  by  my 


§§766,767        merwine's  trial  op  title  to  land.  538 

said  wife,  or  from  the  principal,  if  it  is  necessary  so  to  do,  to 
equalize  the  advances  to  my  said  children,  by  advancing  to  such 
of  said  children  who  have  received  less  amounts  than  the  others, 
such  sum,  or  sums,  at  such  time  or  times,  as  my  executor  shall 
deem  proper,  as  shall  equalize  the  advances  made  to  each  and  all 
of  my  said  children.  The  judgment  and  discretion  of  my  said 
executor,  as  exercised  in  making  any  advances  or  distributions, 
shall  be  final  and  conclusive. 

Upon  the  death  of  my  wife,  ,   I  give,  bequeath  and 

devise  all  my  estate,  both  real  and  personal,  then  remaining 
undisposed  of  in  the  possession  of  my  executor,  to  my  children, 

J and ,  and  their  heirs  and  assigns  forever, 

to  be  divided  among  them  in  such  manner  that  my  children  shall 
all  share  equally  in  my  estate.  All  gifts  and  advances  which 
shall  have  up  to  that  time  been  made  by  full  authority  of  myself, 
as  appears  upon  my  said  book,  or  by  my  executor  as  hereinbefore 
provided,  shall  be  charged  to  each  of  said  children  to  whom  such 
gifts  or  advances  shall  have  been  made,  and  their  amounts 
equalized,  to  the  end  that  all  of  my  said  children  shall  share 
alike  and  equally  in  my  estate. 

Sec.  766.     Form  for  provision  in  a  will  giving  power  to  trus- 
tee to  continue  business. 

I  further  authorize  and  empower  my  said  trustee  heretofore 
appointed  herein  by  me,  in  the  exercise  of  his  discretion,  to  carry 
on  any  or  all  business  conducted  by  me  at  the  time  of  my  decease, 
or  in  which  I  may  be  then  interested,  whether  alone  or  in  part- 
nership with  others,  and  to  continue  the  same  for  such  time  as, 
in  the  judgment  of  such  trustee,  shall  be  for  the  best  interest 
of  my  estate,  and  to  extend  or  renew  any  such  partnership,  or 
terminate  the  same,  as  said  trustee  shall  think  fit. 

Sec.  767.    Form  for  devise  of  real  estate  to  wife  for  life  with 
remainder  to  brothers  and  sisters. 

Item  .     I  give  and  devise  to  my  wife,  ,  during 

her  natural  life,  all  my  real  estate  wheresoever  situated,  and, 


539  DESCENT    AND    DISTRIBUTION.  §§768,769 

after  her  death,  I  give  and  devise  all  my  said  real  estate  to  my 

brothers  and  sisters, , , and ,  equally, 

share  and  share  alike. 


Sec.  768.     Form  for  devise  to  wife  for  life  with  remainder  to 
children. 

Item  .     I  give  and  devise  to  my  wife,  ,  the  fol- 
lowing described  real  estate  in County,  Oklahoma,  to-wit : 

(Here  specifically  describe  same),  for  and  during  her  natural 
life ;  and,  after  her  death,  I  give  and  devise  the  same  to  my  chil- 
dren,   ,  and  ,  in  equal  shares,  absolutely 

and  in  fee  simple. 


Sec.  769.     Skeleton  form  for  codicil  to  last  will  and  testament. 

CODICIL  TO  FOREGOING  LAST   WILL  AND 
TESTAMENT. 

I, ,  of  the  county  of and  State  of  Oklahoma,  do 

hereby  make,  publish  and  declare  this  codicil  to  my  last  will 
and  testament,  dated  the day  of ,  19 — : 

T  hereby  revoke  and  annul  Item  and  Item  of 

said  will,  and  in  lieu  thereof,  I  substitute  the  following  to  be 
deemed  and  taken  as  if  originally  inserted  in  said  will  as  said 
Items  and  ,  respectively:  (Here  insert  the  pro- 
visions indicated,  giving  to  each  the  Item  of  the  will  to  which 
the  codicil  is  attached.)  I  hereby  ratify  and  confirm  my  said 
will  in  all  other  respects. 

In  "Witness  Wiiekeop,  I  have  hereunto  set  my  hand  and  seal 
this day  of ,  19 — . 

[Seal.]  . 

Signed  and  acknowledged  by  the  said  as  and  for  a 

codicil  to  his  last  will  and  testament  in  our  presence,  and  by  us 
subscribed  as  attesting  witnesses  in  his  presence,  at  his  request 


§  770  merwixe's  trial  of  title  to  land.  540 

and  in  the  "resence  of  each  other,  this  day  of  , 

19—.*  , 


Residing  at  ,  OklaJioma. 

Residing  at  ,  Oklahoma. 

Sec.  770.  The  procedure  by  which  a  last  will  and  testament 
is  admitted  to  probate — The  form  for  the  peti- 
tion for  probate  of  a  will. 

In  the  County  Court  in  and  for  County, 

Oklahoma. 
In  the  Matter  of  the  Estate 

of Deceased.  No.  . 


PETITION  FOR  PROBATE  OF  WILL. 

Comes  now and  shows  to  the  court  that departed 

this  life  near ,  Oklahoma,  on  or  about  the day  of 

,  19 — ,  and  that  said  decedent  was,  at  the  time  of  his 

death,  a  resident  of  County,  Oklahoma;  that  decedent 

left  an  estate  in  said  county  and  State,  the  general  character 
and  value  of  which  is  hereinafter  stated :  that  said  decedent  left 

a  will  bearing  date  of  the  day  of  ,  19 — ,  which 

petitioner  alleges  to  be  the  last  will  and  testament  of  deceased, 
and  which  is  herewith  presented  for  probate ;  that  the  person 
named  in  said  will  as  executor,  consents  to  act  as  such,  and  that 

for  whom  letters  testamentary  are  prayed  herein,  is  a 

resident  of County,  Oklahoma ;  that  the  names,  ages  and 

residences  of  the  heirs  and  devisees  of  decedent,  so  far  as  known 
to  petitioner,  are  as  folloM^s:  (Here  insert  same)  :  that  the  gen- 
eral character  and  probable  value  of  said  estate  is  as  follows: 
(Hore  insert  same.) 

"Wherefore,   petitioner  prays  tnat,   upon   a   hearing  hereof, 
said  Mnll  be  admitted  to  probate,  and  letters  testamentary  be 

issued  to .  ■ , 

Petitioner. 

*  The  fore?oin'T  forms  are  adapted       sion    of   the  W.   H.   Anderson   Com- 
from  Couse's  Form  Book  hy  permis-      pany,    publishers,    Cincinnati,   Ohio. 


541 


DESCENT    AND   DISTRIBUTION.  §§771,772 


Sec.  771.    Form  for  order  of  hearing  petition  for  probate  of 

will. 

State  of  Oklahoma, County,  ss. : 

In  the  CoTinty  Court. 

In  the  Matter  of  the  Estate 

of .  Deceased.  No. . 

ORDER  FOR  HEARING  PETITION  FOR  PROBATE 
OF  WILL. 

On  this  day  of  ,  19—,  having  filed  in 

this  court  an  instrument  purporting  to  be  the  last  will  and  tes- 
tament of  ,  deceased,  with  a  petition  that  the  same  be 

admitted  to  probate,  and  that  letters  testamentary  issue  thereon 

to . 

It  is  ordered  that  said  petition  be,   and  hereby  is,  set  for 

hearing  on  the  day  of  ,  19—,  at  o'clock, 

—  m.,  and  that  notice  thereof  be  given  by  posting  copies  of  the 

notice  for  hearing  said  petition  in  three  public  places  in 

County,  Oklahoma,  and  that  copies  of  said  notice  be  mailed  to 
the  heirs  at  law  or  devisees  of  deceased,  residents  of  said  State, 

as  required  by  law.  ■ ' 

Judge  of  the  County  Court. 

Sec.  772.    Form  for  notice  of  hearing  of  probate  of  will. 

State  of  Oklahoma, County,  ss. : 

In  the  County  Court. 

In  the  Matter  of  the  Estate 

of ,  Deceased.  ^o- • 

NOTICE  OF  HEARING  PROBATE  OF  WILL. 

Notice  is  hereby  given  to  all  persons  interested  in  the  estate 

of  ,  deceased,  that  on  the day  of  ,  19—, 

produced  and  filed  in  the  county  court  of  the  county  of 

,  State  of  Oklahoma,  an  instrument  in  writing,  purport- 
ing to  be  the  last  will  and  testament  of  ,  deceased,  and 

also  filed  in  said  court  his  petition,  praying  for  the  probate  of 
said  will,  and  that  letters  testamentary  issue  thereon  to , 


§§773,774        merwine's  trial  of  title  to  land.  542 

the  executor  named  in  said  will,  and  that  said  petition  will  be 

heard  at  the  courtroom  of  said  court,  in  the  city  of  ,  in 

said  county  and  State  on  the  day  of  ,  19 — ,  at 

the  hour  of o'clock,  —  m.,  of  said  day,  when  and  where 

all  persons  interested  can  appear  and  show  cause,  if  any  they 
have,  why  the  prayer  of  said  petition  should  not  be  granted. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and 

affixed  the  seal  of  the  county  court  this  day  of  , 

19—.  

[Seal.]  Judge  of  the  County  Court. 

Sec.  773.     Form  for  proof  of  posting  and  mailing  the  fore- 
going notice. 

State  of  Oklahoma, County,  ss. : 

I,  ,  being  first  duly  sworn,  on  oath,  state  that  on  the 

day  of  ,  19 — ,  I  posted  copies  of  the  above  and 

foregoing  notice  in  three  public  places  in County,  Okla- 
homa, to-wit :  one  at  ,  one  at  and  one  at  , 

all  in ,  in  the  said  county  of ,  and  that  I  deposited 

in  the  postoffice  in  ,  in  said  County,  Oklahoma, 

on  the  day  of  ,  19 — ,  copies  of  the  above  notice, 

postage  paid,  and  addressed  to  the  following  persons,  to-wit: 
(Here  insert  names  as  given  in  petition),  whose  postoffice  ad- 
dresses are  as  follows:   (Here  insert  same.) 

Subscribed  and  sworn  to  before  me  this day  of , 

19—.  , 


My  commission  expires  .  Notary  Public. 

Sec.  774.     Form  for  written  testimony  of  subscribing  witness 
to  last  will  and  testament. 

State  of  Oklahoma, County,  ss. : 

In  the  County  Court. 
In  the  Matter  of  the  Estate 

of ,  Deceased.  No. . 

,  being  first  duly  sworn,  on  oath  states :   I  reside  in  the 


county  of and  State  of  Oklahoma ;  I  am years  of 


543  DESCENT    AND    DISTRIBUTION.  §775 

age ;  I  knew on  the day  of ,  19 — ,  the  date 

of  the  instrument  now  shown  to  me,  marked  as  filed  in  this 

court  on  the  day  of ,  19 — ,  purporting  to  be  the 

last  will  and  testament  of  said ,  deceased. 

I  am  ,  whose  name  appears  as  one  of  the  subscribing 

witnesses  to  said  instrument;  said  name  so  subscribed  is  my 
signature.  I  also  knew  at  the  date  of  said  instrument  the  other 
of  said  subscribing  witnesses. 

This  said  instrument  was  signed  by  said  ,  at  , 

in  the  county  of ,  State  of  Oklahoma,  on  the day 

of  ,  19 — ,  the  day  it  bears  date,  in  the  presence  of  said 

and  myself,  and  said  ,  upon  signing  the  same, 

declared  to  us  that  said  instrument  was  his  last  will  and  testa- 
ment and  requested  us  to  sign  the  same  as  witnesses;  the  said 

,  and  I  thereupon,  in  the  presence  of  said ,  and  in 

the  presence  of  each  other,  subscribed  our  names  thereto.     On 

said  day,  at  the  time  said  instrument  was  executed,  said 

was  of  the  age  of years,  or  thereabouts,  and  was  of  sound 

and  disposing  mind,  and  was  not  acting  under  duress,  menace, 
fraud,  undue  influence  or  misrepresentation,  and  that  said  will 
was  executed  in  all  particulars  as  required  by  law. 


Subscribed  and  sworn  to  in  open  court  this  day  of 

-,  19-. 


[Seal.]  Judge  of  the  County  Court. 

Sec.  775.     Form  for  protest  of  heirs  against  allowing  probate 
of  last  will  and  testament. 

In  the  County  Court  in  and  for County,  Oklahoma. 

In  the  :\Iatter  of  the  Probate  of 

the  Last  Will  and  Testament 

of ,  Deceased.  No- • 

PROTEST   OF   HETRS  AGAINST   ALLOWING   PROBATE 
OF  LAST  WILL  AND  TESTAMENT 

Come  now  and ,  ■»  and 


an(i , and ,  minors,  by ,  their 


§  775  MEBWINE  'S   TRIAL   OF   TITLE   TO   LAND.  544 

next  friend,  and  enter  this  their  protest  and  objection  to  the 

granting  of  letters  to ,  and  the  probate  of  the  pretended 

last  will  and  testament  of ,  for  the  following  causes : 

1.  The  protestants  charge  that  said  last  will  and  testament  is 
not  executed  as  required  by  law,  in  that  it  was  not  signed  by 

said  ,  nor  was  it  executed  by  him,  either  by  mark  or  in 

any  manner  recognized  as  an  execution  of  any  last  will  and 
testament  under  the  law. 

2.  Because  the  said  last  will  and  testament  was  never  pub- 
lished by  said  ,  as  his  last  will  and  testament,  and  de- 
clared to  be  his  last  will  and  testament  as  required  by  law. 

3.  Because  said was,  at  the  time  of  making  said  will, 

and  at  the  time  of  his  death,  a  full  blood  Creek  citizen,  and  the 
lands  attempted  to  be  conveyed  and  alienated  by  said  will  were, 
by  the  laws  of  the  United  States,  restricted  from  alienation,  as 
the  allotment  of  the  said during  his  lifetime. 

4.  That  the  said  will,  if  probated,  and  the  estate  distributed 
under  and  according  to  the  terms  of  said  will,  will  effectually 
disinherit  the  above  named  persons,  who  are  all  children  of 
said  ,  and  that  said  will  was  not  acknowledged  or  ap- 
proved by  any  United  States  commissioner  or  judge  of  any 
United  States  court  for  the  Indian  Territory,  as  provided  by  the 
laws  of  the  United  States. 

5.  Because  the  said did  not  know  or  understand  the 

meaning,  purport  and  consequences  of  his  act  in  signing  the  said 
purported  last  will  and  testament,  for  the  reason  that  he  was  a 
full  blood  Creek  Indian,  and  had  little,  if  any,  understanding 
of  the  English  language,  and  was  wholly  ignorant  of  the  Anglo- 
Saxon  race  regarding  the  making  of  wills ;   that  said  

had  never  heard  of  such  a  thing  as  a  Creek  Indian  alienating 
lands  by  means  of  a  will,  and  the  effect  and  consequences  of  the 
making  of  said  will  were  not  sufficiently  translated  and  inter- 
preted to  him,  so  that  he  could  act  intelligently  in  the  making 
of  said  will,  and  so  that  he  could  fully  realize  the  consequences 
and  effect  of  the  making  thereof;  that  said  decedent  had  no 
desire  or  intention  of  cutting  off  his  children  and  disinheriting 


545  DESCENT    AND    DISTRIBUTION.  §  776 

them,  and  did  not  realize  the  effect  of  said  will;  that,  being 
unable  to  understand  the  purpose  and  effect  of  said  will,  he  did 
not  publish  the  same  as  required  bv  the  statute  of  this  State, 
and  did  not  declare  the  said  will  to  the  witnesses  thereof,  as  his 
last  will  and  testament. 

Wherefore,  the  above  named  heirs  at  law  pray  that  said  will 
be  denied  probate,  and  that  no  letters  issue  to  the  executor 
named  in  said  pretended  last  will  and  testament,  but  that  the 
court  appoint  an  administrator,  and  said  heirs  at  law  do  hereby 
nominate  and  select  as  such  administrator. 


Attorney  for  Protestants. 


Sec.  776.    Form  for  order  appointing  guardian  ad  litem  for 
infant  heirs. 

In  tpie  County  Court  in  and  for County,  Oklahoma. 

In  the  Matter  of  the  Estate 

of ,  Deceased.  No. . 

ORDER  APPOINTING  GUARDIAN  AD  LITEM. 

It  appearing  to  the  court  that  has  filed  in  this  cause 

a  last  will  and  testament,  purporting  to  be  executed  by  , 

in  which   said  is  made   the   principal   devisee;   and  it 

further  appearing  that  said is  guardian  of  the  following 

named  minors:  ,  ,  and  ,   and  that 

said  minor  children  are  heirs  at  law  of  ;  that  their  in- 
terest is  adverse  to  the  interest  of  said — . 

It  is  Therefore  ordered  and  adjudged  that  ,  a  prac- 
ticing attorney  of  the  bar  of County,  Oklahoma,  be,  and 

he  is  hereby,  appointed  guardian  ad  litem  to  defend  the  inter- 
ests of  said  minors  in  said  proceedings,  and  he  is  hereby  ordered 
to  take  the  necessary  steps  to  protect  the  interests  and  rights  of 
said  minors. 

[Seal,]  Judge  of  the  County  Court. 


§  777  merwine's  trial  of  title  to  land.  546 

Sec.  777.  Form  for  the  protest  of  guardian  ad  litem  of  minor 
heirs  against  the  probate  of  the  alleged  last  will 
and  testament. 

In  the  County  Court  in  and  for County,  Oklahoma. 

In  the  Matter  of  the  Estate 

of ,  Deceased.  No. . 

PROTEST  BY  GUARDIAN  AD  LITEM  FOR  MINOR 

HEIRS  AGAINST  PROBATE  OF  ALLEGED 

LAST  WILL  AND  TESTAMENT. 

Come  now  ,  ,  and  ,   minors,   by 

their  guardian  ad  litem,  ,  heretofore  duly  appointed  to 

represent  the  interests  of  said  minors  in  said  matter,  and  protest 
against   the    probate   of  said   last   will   and   testament   of  said 

• ,  deceased,  which  said  will,  together  with  a  petition  for 

the  probate  of  the  same,  was  duly  filed  in  this  court  on  the 

day  of ,  19 — ,  for  the  following  reasons : 

1.  Because  this  court  has  no  power  or  jurisdiction  to  probate 
said  will. 

2.  Because  said  was  a  citizen  of  the  Creek  Nation, 

duly  enrolled  by  the  commission  of  the  five  civilized  tribes  as 
a  full  blood  Indian,  and  because  said  land,  described  in  said 
will,  to-wit:  (Here  describe  it)  was  restricted  land,  it  being  the 

allotment  of  ,   deceased,  which  he  was  prohibited  from 

alienating,  conveying  or  incumbering  during  his  lifetime. 

3.  Because  said  will  is  an  attempt  to  charge  the  allotment  of 

with  a  debt  or  obligation,  due  from  said  to  the 

devisee,  in  violation  of  the  act  of  Congress  kno^^^l  as  the  Sup- 
plemental Creek  Treaty,  enacted  June  30,  1902. 

4.  Because  said  will  disinherits  these  contestants,  who  are 
children  of  said ,  deceased. 

5.  Because  said  will  was  never  approved  by  any  United  States 
Court  for  the  Indian  Territory,  or  United  States  commissioner, 
or  judge  of  a  county  court  of  the  State  of  Oklahoma,  in  accord- 
ance with  Federal  law. 

6.  Because  said  will  was  not  signed  by  ,  by  his  own 

signature  or  by  mark. 


547  DESCENT    AND    DISTRIBUTION.  §  778 

7.    Because  said  will  was  made  under  duress  in  that  the  said 
,  deceased,  was  in  great  need  of  money  and  the  neces- 


saries of  life  at  the  time  of  the   execution   of  said  will,   and 

executed  the  same  upon  the  promise  of  devisee,  ,  that  he 

would  furnish  him  money  and  the  necessaries  of  life ;  that  said 
will  was  not  his  free  and  voluntary  act  and  deed,  and  that  he 
did  not  understand  the  nature  and  consequences  of  his  act. 

8.     Because  said  had  no  capacity  to  make  a  will,  he 

being  a  full  blood  Indian,  and  the  land  which  he  has  attempted 
to  devise  being  his  own  allotment,  and  is  restricted,  which  the 
said  was  prohibited  from  alienating,  conveying  or  in- 
cumbering during  his  lifetime. 

Wherefore,  the  above  named  contestants  pray  that  said  will 
be  not  admitted  to  probate ;  that  this  court  declare  said  will 
void  and  of  no  effect,  and  that  some  competent  and  suitable 

person  be  appointed  administrator  of  the  estate  of  said  , 

deceased. 


Guardian  Ad  Litem  for  said  Minor  Heirs. 


Sec.  778.     Form  for  the  answer  of  proponents  to  protestants 
to  said  will. 

In  the  County  Court  in  and  for County,  Oklahoma. 

In  the  Matter  of  the  Probate  of 

Last      Will      and     Testament 

of ,  Deceased.  No. , 

ANSWER  TO  PROTEST. 

Comes  now ,  proponent  of  the  will  of ,  deceased, 

and,  for  answer  to  the  protest  filed  herein,  alleges  and  states: 

1.  Said  proponent  denies  that  said  will  was  not  executed  as 
required  and  described  by  law,  but  alleges  the  truth  to  be  that 
said  will  was  executed  as  required  by  law;  that  the  name  of  the 
testator  was  signed  thereto  by  his  permission  and  at  his  request, 
and  in  his  presence;  that,  at  the  time  of  the  making  and  execu- 
tion of  said  will,  Mansfield's  Digest  of  the  Statutes  of  Arkansas 


§  779  MERWINE  'S   TRIAL    OF   TITLE   TO   LAND.  548 

was  in  force  in  the  Indian  Territory  where  said  will  w^as  exe- 
cuted. 

2.  Said  proponent  denies  that  said  will  was  never  published 

by  said  ,  but  alleges  the  truth  to  be  that  said  will  was 

published  by  the  said to  be  liis  last  will  and  testament  as 

required  by  law. 

3.  Said  proponent  admits  that  the  Creek  Treaty  of  1902 
contains  the  provision  set  out  in  the  protest,  but  denies  that  the 
same  was  in  force  and  effect  at  the  time  of  the  execution  of  said 
will,  or  at  the  time  of  the  death  of  said . 

4.  Proponent  denies  that  said  will  was  not  acknowledged  or 
approved  by  a  United  States  commissioner  as  provided  by  law 
in  the  act  of  Congress  of  the  United  States  of  April  26,  1906, 
but  avers  the  truth  to  be  that  said  will  was  executed  in  accord- 
ance with  said  act. 

5.  Proponent  denies  that  said  did  not  understand 

fully  the  effect  and  consequences  of  his  said  act  in  signing  said 
will,  and  denies  that  said  will  was  not  sufficiently  translated  and 
interpreted  to  him. 

6.  Said  proponent  denies  each  and  every  allegation  in  said 
protest  contained,  except  such  as  are  herein  specifically  admitted. 

Wherefore,  proponent  prays  the  court  that  said  will  be  ad- 
mitted to  probate,  and  that  the  protest  of  said  herein 

filed  be  dismissed.  , 

Attorneys  for  Proponent. 

Sec.  779.     Form  for  order  of  court  admitting  will  to  probate. 

State  of  Oklahoma, County,  ss. : 

In  the  County  Court. 
In  the  Matter  of  the  Estate 

of ,  Deceased.  No. . 

ORDER  ADMITTING  WILL  TO  PROBATE. 

The  petition  of ,  heretofore  filed  herein,  praying  for  the 

admission  of  probate  of  a  certain  instrument  in  writing,  pur- 
porting to  be  the  last  will  and  testament  pf  ,  deceased, 

and  that  letters  testamentary  be  issued  to  said  petitioner,  to- 


549  DESCENT    AND    DISTRIBUTION.  §  779 

gether  with  the  protest  of  ,  and  ,  minors, 

by  their  guardian  ad  litem, ,  and  the  protest  of  , 

and  heretofore  filed  herein,  this  day  coming  on 


regularly  to  be  heard,  the  hearing  having  been  continued  from 

the day  of ,  19 — ,  to  this  day,  and  it  being  proved 

to  the  satisfaction  of  this  court  that  notice  has  been  given  as 
required  by  law,  to  all  persons  interested,  of  the  time  appointed 

for  proving  said  will,  and  for  hearing  said  petition ;  and 

and  ,  two  of  the  subscribing  witnesses  of  said  will,  pro- 
duced in  behalf  of  said  petitioner,  whose  testimony  has  been 
reduced  to  writing  and  filed  with  the  papers  in  this  cause ;  and 
the  court  also  having  heard  the  evidence  against  the  probate  of 
said  will  by  protestants  above  named,  and,  after  having  heard 
and  considered  the  evidence  offered  in  support  and  against  the 
probate  of  said  will,  it  appears  that  said  instrument  is  the  will 

of  the  said  ,  deceased,  and  that  it  was  executed  in  all 

particulars  as  required  by  law;  that  said  testator,  at  the  time 
of  the  execution  of  the  same,  was  of  sound  and  disposing  mind, 
and  not  under  any  duress,  menace,  fraud  or  undue  influence ; 

that  said  died  on  or  about  the  day  of  , 

19 — ,  being  a  resident  of  the  county  of  ,  State  of  Okla- 
homa, and  at  the  time  of  his  death  left  real  estate  in  said  State, 
for  and  in  respect  to  which,  the  probate  of  said  will  is  applied 

for,  which  said  estate  is  of  the  approximate  value  of  $ , 

and  said  applicant  being  competent  to  act  as  executor  of  said 
estate,  it  is  ordered  that  said  instrument  heretofore  filed,  pur- 
porting to  be  the  last  will  and  testament  of  said  ,  de- 
ceased, be  admitted  to  probate  as  the  last  will  of  the  said , 

deceased;    that   said  be,   and   he   is,   hereby   appointed 

executor  of  said  estate,  and  that  letters  testamentary  issue  to 
said  petitioner  upon  his  taking  the  oath  required  by  law,  and 
giving  the  bond  required  by  law  for  the  faithful  execution  of 

the  duties  of  his  trust  as  such  executor,  in  the  sum  of  $ , 

with  sureties  to  be  approved  by  the  judge  of  this  court.* 

*  The    foregoing    forms    are    sub-       for    the    purpose    merely    of    giving 
mitted    not    as    determining    any   of       the   forms   of  procedure, 
the  law  questions  raised  therein,  but 


§  780  MERWINE  'S   TRIAL    OF   TITLE   TO   LAND.  550 

Done  in  open  court  this day  of ,  19 — . 


[Seal.]  Judge  of  the  County  Court. 

Sec.  780.     Form  for  order  of  court  refusing  to  probate  last 
will  and  testament. 

State  of  Oklahoma,  County,  ss. : 

In  the  County  Court. 
In  the  Matter  of  the  Estate 

of ,  Deceased.  No. . 

ORDER  REFUSING  ADMISSION  OF  LAST  WILL  AND 
TESTAMENT  TO  PROBATE. 

The  petition  of ,  heretofore  filed  herein,  praying  for  the 

admission  to  probate  of  a  certain  instrument  in  writing,  pur- 
porting to  be  the  last  will  and  testament  of  ,  deceased, 

and  that  letters  testamentary  be  issued  thereon  to  the  executor 

therein  named,  together  with  the  protest  of and , 

heretofore  filed  herein,  and   asking  that  be   appointed 

administrator  of  the  estate  of ,  deceased,  this  day  coming 

on  regularly  to  be  heard,  and  it  being  proved  to  the  satisfaction 
of  this  court  that  notice  has  been  given  as  required  by  law  to 
all  persons  interested  in  said  will,  of  the  time  appointed  for  the 
proving  of  said  will,  and  for  the  hearing  of  said  petition,  and 

and  ,  two  of  the   subscribing  witnesses  of  said 

will,  produced  in  behalf  of  said  petitioner,  whose  testimony  has 
been  reduced  to  writing  and  filed  herein,  and  the  court  also 
having  heard  the  evidence  offered  against  the  probate  of  said 
will  by  the  protestants  above  named,  and  after  having  heard  the 
evidence  offered  in  support  of  and  against  the  probate  of  said 
will,  it  appears  that  said  instrument  in  writing  is  not  the  last 

will  and  testament  of  said  ,  deceased;  that  it  was  not 

executed  in  all  particulars  as  required  by  law ;  that  said  testator 
at  the  time  of  the  execution  of  the  same,  was  not  of  sound  and 
disposing  mind  and  memory,  but  was  under  undue  influence, 
and  did  not,  at  the  time  he  executed  the  same,  understand  he 


551  DESCENT    AND    DISTRIBUTION.  §  781 

was  signing  his  last  will  and  testament;  that  said  died 

on  or  about  the  day  of  ,  19 — ,  being  a  resident 

of  the  county  of ,  State  of  Oklahoma,  at  the  time  of  his 

death,  leaving  real  estate  in  said  county  and  State,  for  and  in 
respect  to  which,  the  probate  of  said  will  was  applied  for,  as 
aforesaid,  which  said  estate  is  of  the  approximate  value  of 
$ . 

It  is  Therefore  ordered  that  said  instrument  in  writing  here- 
tofore filed  herein,  purporting  to  be  the  last  will  of  the  said 

,  be  refused  probate  as  the  last  will  of  the  said  , 

deceased;  that  said  be  not  appointed  executor  of  said 

will,  and  that  be  appointed  administrator  of  the  estate 

of  said  ,  deceased,  upon  his  taking  the  oath  as  required 

by  law,  and  giving  the  bond  required  by  law,  for  the  faithful 
execution  of  the  duties  of  his  trust  as  such  administrator,  in  the 

sum  of  $ ,  with  sureties  to  be  approved  by  the  judge  of 

this  court. 

Done  in  open  court  this day  of  ,  19 — . 


Judge  of  the  County  Court. 


Sec.  781.  The  procedure  by  which  a  will  is  contested  after 
the  same  has  been  admitted  to  probate — The 
petition  in  such  case. 

In  the  County  Court  in  and  for County,  Oklahoma. 

In  the  Matter  of  the  Estate 

of ,  Deceased.  No.  . 

PETITION  TO  SET  ASIDE  PROBATE  OF  ALLEGED 
WILL  OF  ,  DECEASED. 

Comes  now ,  \)y  her  guardian ,  and  states : 

1.  That  she  is  an  infant  of  tender  years,  to-wit : years 

of  age. 

2.  That is  her  legally  appointed  and  acting  guardian, 

and  that  she  is  now  and  for  the  past  years  has  been  a 

resident  of County,  in  the  State  of  Oklahoma. 


§  781  merwine's  trial  of  title  to  land.  552 

3.  That  she  is  the  only  surviving  child  of  ,  deceased. 

4.  That  the  said was  a  full  blood  Creek  Indian  citizen 

of  the  Creek  nation,  and  died  some  time  in  the  month  of , 

19 — ,  in  what  is  now  County,  State  of  Oklahoma,  and 

left  surviving  him  a  widow  and  one  child,  the  said  . 

5.  That  a  very  short  time  before  the  death  of  the  said 


a  paper  was  executed,  signed  and  witnessed,  which  pretended 

to  be  the  last  will  and  testament  of  the  said  ,  and  that 

said  pretended  will  w^as  afterwards  filed  and  admitted  to  probate 
in  the  United  States  Court  for  the  Western  District  of  the  Indian 
Territory,  at . 

6.  That  said ,  by  said  pretended  will,  disinherited  his 

wife  and  deprived  her  of  her  dower  interest  in  said  estate,  and 

left  out  a  small  portion  of  his  property  to  ,   his   only 

child,  and  left  the  bulk  of  all  his  estate  to  and , 

both  white  men,  strangers  to  him  in  blood,  who  were  his  phy- 
sicians, attending  him  at  his  last  sickness  at  the  time  said  pre- 
tended will  w^as  made. 

7.  That  at  the  time  said  pretended  will  was  made  said 

was  on  his  deathbed,  and  was  so  worn  out  by  pain  and  suffering 
that  his  mind  was  so  enfeebled  as  to  be  utterly  incapable  of 
transacting  any  business  whatever,  or  to  understand  in  any  way 
the  making  of  a  will. 

8.  That  said  pretended  will  was  made  while  said was 

under  duress  of  said  and  ,  and  was  obtained  by 

them,  through  duress,  undue  influence  and  fraud,  which  acts  of 
duress,  undue  influence  and  fraud  were  as  follows:  (Here  set 
cut  specific  acts  of  fraud,  duress  and  undue  influence.) 

9.  That  said  pretended  will  w^as  prepared  by  the  said • 

and  ,  of  their  ow^n  volition,  and  was  not  dictated  or  sug- 
gested by  the  said  ,  and  the  same  was  not  read  over  to 

him  before  his  pretended  signature  or  mark  was  affixed  thereto ; 
that  there  was  no  one  present  who  could  read  said  will  in  Eng- 
lish and  interpret  the  same  in  Creek ;  that  the  said could 

neither  talk  or  understand  the  English  language,  and  had  no 
knowledge  whatever  of  the  contents  of  said^will,  and  that  said 
pretended  will  was  signed  and  witnessed  at  the  instance,  solici- 


553  DESCENT    AND    DISTRIBUTION.  §  782 

tation    and    request    of    the   said   and   ,    for   the 

purpose  of  obtaining  the  property  of  the  said  ,  and  de- 
priving his  wife  and  child  of  the  same. 

10.  That  said  pretended  will  was  not  executed  in  accordance 
vnih  the  laws  then  in  force  in  Indian  Territory  as  to  the  maldng 
and  execution  of  wills,  and  could  not  vest  any  rights  of  prop- 
erty in  the  devisees  named. 

"Wherefore,  your  petitioner  prays  the  court  that  the  paper 
heretofore  admitted  to  probate  as  said  last  will  and  testament 

of  said ,  deceased,  be  revoked  and  canceled  and  for  naught 

held,  and  that  the  probate  of  the  same  be  set  aside;  that  the 

proponents,  the  said and ,  be  taxed  with  the  costs 

of  this  proceeding,  and  that  it  be  adjudged  and  decreed  that 

said died  intestate,  and  for  such  other  and  further  relief 

as  to  the  court  may  seem  just  and  proper. 


Attorney  for  Plaintiff. 

State  of  Oklahoma,  County,  ss. : 

,  being  duly  sworn,  says  that  he  is  the  legally  appointed 

and  acting  guardian  of  said ,  a  minor;  that  he  has  read 

the  foregoing  petition  and  knows  the  contents  thereof,  and  that 
the  same  is  true  to  the  best  of  his  knowledge  and  belief. 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


jMy  commission  expires  .  Notary  Public. 

Sec.  782.     Form  for  praecipe  for  summons  in  such  action. 

State  of  Oklahoma, County,  ss. : 

In  the  County  Court. 
In  the  i\Iatter  of  the  Estate 

of ,  Deceased.  No.  . 

To  the  Clerk  of  said  Court: 

Please  issue  summons  in  the  above  entitled  cause  to  


and  ,  of County,  Oklahoma,  making  same  return- 
able on  the  day  of ,  19 — ,  and  designate  therein 


§  783  MER wine's  trial  of  title  to  land.  554 

the day  of ,  19 — ,  as  answer  day,  and  deliver  same 

to  the  sheriff  of  County,  and  indorse  thereon  that  if 

defendants  fail  to  answer,  judgment  will  be  taken  for  revoca- 
tion and  cancellation  of  a  will. 


Attorney  for  Plaintiff. 


Sec.  783.  Form  for  a^eement  by  parties  to  have  cause  re- 
ferred to  special  judge  for  the  determination  of 
the  question  as  to  the  setting  aside  of  the  will  in 
controversy. 

In  the  County  Court  in  and  for County,  Oklahoma. 

In  the  Matter  of  the  Estate 

of ,  Deceased.  No.  . 

STIPULATION. 

It  is  hereby  stipulated  and  agreed  by  and  between  the  parties 
to  the  above  entitled  cause  that  said  cause  may  be  referred  to  the 

Honorable  ,  of  ,  Oklahoma,  a  member  of  the  bar 

of County,  in  good  and  regular  standing,  to  sit  as  special 

judge  of  the  county  court  of  said  County,  to  try  said 

cause,  because  of  the  fact  that ,  the  regular  judge  of  the 

county  court  of  said  County,  has  disqualified  himself  to 

sit  in  said  cause  by  reason  of  his  having  formed  and  expressed 
an  opinion  as  to  some  of  the  matters  therein,  in  the  discharge  of 
his  official  duties  as  judge  in  probate  matters. 

And  it  is  hereby  further  stipulated  that  any  irregularity  as 

to  the  selection  of  the  Honorable  as  special  judge,  and 

as  the  disqualification  of  the  Honorable ,  as  regular  judge, 

are  hereby  waived. > 

Attorney  for  Plaintiff, 


Attorney  for  Defendants. 


555  DESCENT    AND    DISTRIBUTION.  §§784,785 

Sec.  784.    Form  for  ofiacial  oath  of  special  judge. 

State  of  Oklahoma,  County,  ss. : 

I,  ,  special  judge  in  Probate  No.  ,  do  solemnly 

swear  that  I  will  support  and  obey  the  Constitution  of  the 
United  States  and  the  Constitution  of  the  State  of  Oklahoma, 
and  will  discharge  the  duties  of  my  office  as  special  judge  in 
such  matter  with  fidelity;  that  I  have  not  paid,  or  contributed, 
either  directly  or  indirectly,  any  money  or  other  valuable  thing, 
to  procure  my  appointment,  except  for  necessary  and  proper 
expenses  expressly  authorized  by  law;  that  I  have  not,  know- 
ingly, violated  any  election  law  of  the  State,  or  procured  it 
to  be  done  by  others  in  my  behalf;  that  I  will  not,  knowingly, 
receive,  directly  or  indirectly,  any  money  or  other  valuable 
thing,  for  the  performance  or  nonperformance  of  any  act  or 
duty  pertaining  to  my  office,  other  than  the  compensation  al- 
lowed by  law,  and  I  further  swear  that  I  will  not  receive,  use 
or  travel  upon  any  free  pass  or  on  free  transportation  during 
my  term  of  office.  • 

Subscribed  and  sworn  to  before  me  this day  of , 

19—.  , 


My  commission  expires  .  Notary  Public. 


Sec.   785.    Form  for   citation  for  executors  to   appear   and 
answer  petition. 

State  of  Oklalioma, County,  ss. : 

In  the  County  Court. 

In  the  Matter  of  the  Estate 

of ,  Deceased.  No.  . 

To and ,  Greeting: 

Whereas,  letters  were,  on  the  day  of  ,  19 — , 

issued  out  of  the  county  court  of County,  to and 

,  as  executors  of  the  estate  of — ,  deceased ;  and, 


Whereas,  ,  by  her  guardian,  ,  has  filed  in  said 

court  her  petition  to  set  aside  the  probate  of  the  alleged  will  of 


§§786,787         merwine's  trial  op  title  to  land.  556 

,  deceased,  and  has  asked  for  a  citation  to  issue  in  said 

cause  to  and  : 


YoTT  are  Therefore  hereby  notified  and  cited  to  be  and 
appear  before  said  county  court  at  the  regular  term  thereof,  to 

be  held  at  the  courtroom  in  ,  in  said  county  of  , 

on  the day  of ,  19 — ,  at  the  hour  of o'clock, 

—  m.,  of  said  day,  then  and  there  to  appear  and  answer  said 
petition,  and  show  cause,  if  any  exists,  why  the  prayer  thereof 
should  not  be  granted,  and,  further,  to  do  and  perform  what 
shall  tlien  and  there  be  ordered  by  said  court  in  said  matter. 
And  hereof  fail  not.    By  order  of  the  judge  of  said  county  court. 

Witness  my  official  signature  and  seal  of  said  court  this 
day  of ,  19—. 


Clerk  of  the  County  Court  at  ,  Oklahoma. 


[Seal. 


Sec.  786.     Form  for  sheriff's  return  of  his  service  of  said 
citation. 

Received  this  citation  on  the  day  of ,  19 — ,  and 

served  the  same  in  my  county  on  the  within  named and 

,  by  delivering  to  each  person  a  true  and  correct  copy  of 

the  within  citation  on  the day  of ,  19 — . 


Sheriff. 


Sec.  787.    Form  for  answer  to  the  petition. 


In  the  County  Court  in  and  for County,  Oklahoma. 

In  the  Matter  of  the  Estate 

of ,  Deceased.  No.  . 


ANSWER  OP  AND  . 

Come  now  the  above  named and ,  and,  for  their 

answer  to  the  petition  to  set  aside  the  probate  of  the  will  of  said 
,  deceased,  state :  * 


557  DESCENT    AND    DISTRIBUTION.  §  787 

1.  That  it  does  not  appear  that  said  ever  procured 

the  consent  of  the  county  court  of  County,  or  of  any 

other  county,  to  bring  this  proceeding,  and,  therefore,  he  has  no 
authority  to  sue. 

2.  That  these  defendants  state  that  they  have  no  sufficient 

knowledge  upon  which  to  base  a  belief  as  to  whether ,  as 

alleged,  is  a  child  of ,  deceased,  and,  therefore,  these  said 

defendants  deny  the  same. 

3.  That   they  have   no  sufficient  knowledge   as   to   whether 

,  as  alleged,  was  a  full  blood  Creek  Indian,  and,  therefore, 

they  deny  the  same;  they  admit  that  he  was  a  member  of  the 
Creek  Tribe  of  Indians  by  blood. 

4.  That  they  deny  that  by  and  in  the  will  as  alleged,  the  said 

disinherited  his  wife,  if  wife  he  had,  or  that  he  deprived 

her  of  any  dower  interest,  or  that  he  had  power  to  do  so,  but 

defendants  state  that  if  the  said had  a  wife  at  that  time, 

she  was  fully  provided  for  under  the  law^s  in  existence;  and, 
further,  they  state  that  he  had  no  wife. 

5.  That  they  deny  that  at  the  time  of  the  execution  of  said 

will  the  said  was  so  worn  out  with  pain  and  suffering 

that  he  was  incapable  of  transacting  any  business  whatever,  or 
that  he  was  in  extremis,  and  wholly  lacked  any  testamentary 

capacity;  that  they  deny  that  said was  under  duress  of 

the  said  and  ,  or  any  other  person,  or  that  said 

will  was  obtained  by  them,  or  anyone,  through  duress,  undue 
influence  or  fraud. 

G.    That  they  deny  that  said  wall  was  prepared  by  said 

and  of  their  own  volition,  and  they  deny  that  said  will 

was  not  read  to  the  said ,  before  his  signature  thereto  was 

annexed:  that  they  deny  that  said could  not  speak  Eng- 
lish, but  state  that  he  could  speak  and  understand  the  English 
language  readily,  and  that  he  understood  the  contents  of  said 
will,  and  that  its  provisions  were  as  he  desired;  they  further 
state  that  relatives  and  friends  of  the  deceased  were  constantly 
wdth  him,  and  that  he  and  they  understood  said  will  and  the 
contents  thereof. 


§  788  merwine's  trial  of  title  to  land.  558 

7.  Further  answering,  these  defendants  state  that  said  will 
was  executed  in  accordance  with  law,  and  with  the  washes  of 
deceased,  and  that  the  same  was  free  from  all  duress,  undue 
influence  or  fraud ;  that  there  has  been  a  previous  adjudication 
of  this  court  adverse  to  the  petitioner  herein ;  that  the  same  was 
appealed  from  the  county  to  the  district  court,  where  said  appeal 
was  dismissed,  and  that  said  matter  is,  therefore,  res  adjudicata 
in  favor  of  these  defendants ;  that  said  adjudication  in  the  county 

court  was  on  the  day  of  ,   19 — ,  and  that  said 

adjudication  in   the  district  court   was   on  the  day  of 

,  19 — ,  at  the Term  thereof. 

Wherefore,  these  defendants  pray  that  the  petitioner  herein 
be  granted  no  relief  whatever  and  that  this  cause  be  dismissed 
as  to  these  defendants;  that  they  have  judgments  for  costs  by 
them  herein  expended,  and  that  they  have  such  other  relief  as 

may  be  just  and  proper.  , 

Attorneys  for and . 

State  of  Oklahoma,  County,  ss. : 

,  being  first  duly  sworn,  on  his  oath  states  that  he  is 

one  of  the  defendants  above  named ;  that  he  has  read  the  fore- 
going answer,  and  that  he  verily  believes  the  statements  therein 
to  be  true.  . 

Subscribed  and  sworn  to  before  me  this day  of , 

19—.  , 


My  commission  expires .  Notary  Public. 

Sec.  788.     Form  for  reply  to  answer. 

In  the  County  Court  in  and  for County,  Oklahoma. 

In  the  Matter  of  the  Estate 

of ,  Deceased.  No.  . 


REPLY  TO  ANSWER. 

Comes  now ,  by  her  guardian, ,  and  attorneys  of 

record  in  this  case,  and,  for  reply  to  the  answer  filed  herein, 
denies   each   and   every   material   allegation   contained   in   said 

answer.  ; , 

Attorneys  for  Plaintiff. 


559  DESCENT    AND    DISTRIBUTION.  §  789 

Sec.  789.     Form  for  finding  of  facts  and  conclusions  of  law  of 
the  special  judge. 

In  the  County  Court  of  County,  OKLAHOiiA. 

In  the  Matter  of  the  Estate 

of ,  Deceased.  No. . 


FINDING  OF  FACTS  AND  CONCLUSIONS  OF  LAW. 

This  action  is  to  revoke  the  probate  of  the  last  will  of 

deceased,  admitted  to  probate  in  court,  on  the 


(^ay  of ,  in  the  year ,  and  to  have  said  will  declared 

invalid.    The  petition  alleges  that was  a  full  blood  Creek 

Indian,  and,  at  the  time  he  made  the  will,  was  mentally  incom- 
petent to  make  a  valid  will.     The  petition  further  alleges  that 

said  ,  at  the  time  he  made  said  will,  was  overcome  by 

undue  influence  exerted  by  the  beneficiaries  in  said  will,  and 
that  said  instrument  was  not  his  ^vill.    The  petition  alleges  that 

said left  a  child,  ,  an  infant,  the  plaintiff  in  this 

action.    All  the  material  facts  in  the  petition  are  denied  by  the 

defendants  and  .     Upon  the  issues  thus  joined 

the  court  heard  the  testimony  of  various  witnesses  on  the 

(Jay   of  ,   19 — ,   and   submits   the    following  findings   in 

writing : 

FINDINGS    OF    FACT. 

1.     was  a  full  blood  Creek  Indian,  more  than  eighteen 

years  of  age  at  the  time  of  the  execution  of  said  last  will  and 
testament. 

2.  The  plaintiff,  ,  is  the  child  of  ,  and  is  a 

minor  of  the  age  of  about  years,  and  is  his  heir  at  law. 

3.  It  is  doubtful  if  possessed  testamentary  capacity 

at  the  time  of  making  the  will  in  question. 

4.  That  at  the  time  of  the  execution  of  the  will  in  question, 
the  relation  of  physician  and  patient,  a  confidential  relation, 

existed  between ,  and  the  defendants.  Doctors and 

,  the  beneficiaries  under  said  will. 


§  790  merwine's  trial  of  title  to  land.  560 

5.  That  at  the  time  of  making  said  will  said was  very- 
weak  physically,  and  was  in  the  practical  control  of  the  bene- 
ficiaries. 

6.  I  find,  from  undisputed  testimony,  that  one  of  the  bene- 
ficiaries,   ,  suggested  to the  making  of  the  will,  and 

that  the  idea  of  the  will  being  made  originated  with  Doctor 
,  one  of  the  defendants,  and  not  with ,  deceased. 

7.  I  find  that  the  terms  of  the  will  are  unnatural,  in  one 
portion  recognizing  an  infant  child  as  his  own,  and  in  another 
portion,  giving  an  unnatural  portion  of  his  bounty  to  strangers 
to  his  blood  and  of  a  different  race. 

8.  I  find  that  the  plaintiff, ,  by  her  guardian, , 

has  proper  authority  to  maintain  this  action. 

9.  I  find  that  the  will  in  question  was  not  executed  in  com- 
pliance with  the  United  States  law  relating  to  wills,  enacted  by 
Congress,  April  26,  1906. 

CONCLUSIONS    OF    LAW. 

From  the  foregoing  findings  of  fact  I  conclude,  as  matter  of 
law,  that  the  will  in  question  is  not  entitled  to  probate,  and  that 
the  order  admitting  the  same  to  probate  should  be  set  aside  and 
held  for  naught. 

It  is  Therefore  considered,  ordered  and  adjudged  by  the 
court,  that  the  order  of  the  said  court  of ,  at ,  ad- 
mitting said  will  to  probate,  is  hereby  set  aside  and  held  for 

naught,  and  that and pay  the  costs  of  this  action, 

to  which  the  said and  except,  and  exceptions  for 

them  are  allowed. 

Dated  this day  of ,  19 — . 


Special  Judge. 

Sec.  790.     Form  for  the  petition  for  the  probate  of  a  foreign 
will. 

State  of  Oklahoma,  County,  ss. : 

In  the  County  Court. 
In  the  Matter  of  the  Probate  of  the 

Foreign  Will  of ,  Deceased  »  No. . 


561  DESCENT    AND    DISTRIBUTION.  §  790 

PETITION  FOR  THE  PROBATE  OF  FOREIGN  WILL. 

Comes  now  ,  of  the  county  of  ,  and  State  of 

,  and  represents  as  follows : 


(a)   That  on  or  about  the day  of ,  19 — , 

died  at  ,  in  the  county  of ,  in  the  State  of , 

and  at  the  time  of  his  death  he  was  a  resident  of  the  county  of 

,  and  State  of ,  and  left  property  in  the  county  of 

,  and  State  of  ,  the  character  of  which  and  the 

probable  value  thereof  are  as  follows,  to-wit:  (Here  specifically 
describe  property,  giving  its  approximate  value),  the  total  estate 
and  effects  of  which  the  probate  of  the  will  herein  applied  for  is 
asked,  does  not  exceed  in  value  the  sum  of  $ . 

(&)  That  on  the day  of ,  19 — ,  said de- 
ceased, left  a  last  will  and  testament,  which  was  duly  proved  and 

allowed  and  admitted  to  probate  by  court  of  ■ 

County,  State  of  ,  a  duly  authenticated  copy  of  which, 

and  the  probate  thereof,  is  hereto  attached,  and  made  a  part 
hereof,  marked  "Exhibit  A." 

(c)  That  said  court,  at  the  time  of  admitting  said  will  to 
probate,  was  a  court  of  competent  jurisdiction  and  had  jurisdic- 
tion of  said  matter  and  of  the  parties  interested  in  said  estate, 
and  your  petitioner  is  the  person  named  in  said  will  as  the 
executor  thereof  and  consents  to  act  as  such  executor;  that  the 
following  persons,  together  with  their  postoffice  addresses  and 
their  ages,  are  named  therein  as  devisees  and  legatees,  to-wit : 
(Here  specifically  set  forth  same.) 

(d)  That  the  follo%ving  persons  are  the  next  of  kin  of  said 
testator,  together  with  their  names,  ages  and  residences,  to-wit: 
(Here  insert  same.) 

The  Premises  Considered,  your  petitioner  prays  that  said 
foreign  will  may  be  admitted  to  probate  and  letters  testamentary 
issue  to  him ;  that  this  court  fix  and  appoint  a  time  for  the  proof 
of  said  will;  that  all  persons  interested  be  notified  to  appear  at 
the  time  appointed  for  proving  the  same,  and  that  all  necessary 
and  proper  orders  be  made  in  the  premises. 


Petitioner. 


§  791  merwine's  trial  of  title  to  land.  562 

State  of  Oklahoma,  County,  ss. : 

,  being  first  duly  sworn,  says  that  he  is  the  executor 

of  the  estate  of  said  ,  deceased,  and  that  the  facts  stated 

and  allegations  contained  in  the  foregoing  petition  are  true.* 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


My  commission  expires .  Notary  Public. 

Sec.  791.    Form  for  certificate  of  proof  of  foreign  will. 

State  of  Oklahoma, County,  ss. : 

In  the  County  Court. 
In  the  Matter  of  the  Probate  of  the 
Foreign  Will  of ,  Deceased.  No. . 

CERTIFICATE  OF  PROOF  OF  FOREIGN  WILL. 

I, ,  judge  of  the  county  court  of County,  Okla- 
homa, do  hereby  certify  that  there  was  produced  by  a 

copy  of  the  last  will  and  testament  of ,  deceased,  and  the 

probate  thereof  in  court  of  the  county  of  ,  and 

State  of  ,  duly  authenticated,  and  said  will,  a  copy  of 

which   is  annexed  hereto,  was,  on  the  day  of  , 

19 — ,  admitted  to  probate  in  this  court  as  the  last  will  of , 

and  from  the  proceedings  taken  and  from  the  examination  had 
thereon,  on  said  day,  the  court  finds  as  follows:    That,  on  the 

day  of ,  19 — ,  in  the  county  of ,  and  State 

of  ,  said  died,  at  the  time  of  his  death  being  a 

resident  of  the  county  of ,  and  State  of . 

The  court  further  finds  that  the  will,  a  copy  of  which  is 
hereto  annexed,  was  duly  proved  and  allowed  and  admitted  to 

probate  as  the  last  will  and  testament  of  ,  deceased,  in 

court  of  the  county  of ,  and  State  of  ,  by 

order  of  said  court,  duly  entered  therein  on  the day  of 

The  court  further  finds  that  said  court,  in  making  said  order 
at  said  time,  was  a  court  of  competent  jurisdiction,  and  that  aU 

*  The    procedure    for    the    notice  a    resident    of    the    county.       The 

and    service    of     notice    upon    the  practitioner    will    there    find    forma 

parties    interested    is    the    same    as  applicable    io    such    transaction, 
that   for   the   probate   of   a  will   of 


563  DESCENT    AND    DISTRIBUTION.  §  792 

persons  interested  in  the  estate  of  said  decedent  were  under  the 
power  and  jurisdiction  of  said  court,  and  that  said  will,  a  copy 
of  which  is  hereto  annexed,  was  executed  according  to  the  laws 

of ,  in  which  State  it  "w^as  made. 

In  Testimony  Whereof,  I  have  hereunto  signed  this  certi- 
ficate and  caused  the  same  to  be  attested  by  the  clerk  of  this 
court  under  the  seal  thereof,  this day  of ,  19 — . 


[Seal.]  Judge  of  the  County  Court. 

Attest: , 

Clerk. 

Sec.  792.    Form  for  order  admitting  foreign  will  to  probate. 

State  of  Oklahoma, County,  ss. : 

In  the  County  Court. 
In  the  Matter  of  the  Probate  of  the 

Foreign  Will  of ,  Deceased.  No. . 


ORDER  ADMITTING  SAID  WILL  TO  PROBATE. 

The  petition  of ,  heretofore  filed  herein,  praying  for  the 

admission  to  probate  of  a  certain  instrument  in  writing,  pur- 
porting to  be  the  last  will  and  testament  of  ,  deceased, 

heretofore  probated  in  the court  of County,  State 

of  ,  this  day  coming  on  regularly  to  be  heard,  and  it 

being  proved  to  the  satisfaction  of  this  court  that  notice  has 
been  given  of  this  hearing  as  required  by  law,  to  all  persons 
interested  of  the  time  appointed  for  admitting  said  foreign 
will  to  probate  in  this  court,  and  the  court  also  having  heard  the 
evidence  offered  on  behalf  thereof,  and,  after  having  fully  con- 
sidered the  same,  the  court  finds  that  said  will  has  been  duly 

proved,  allowed  and  admitted  to  probate  in  the court  of 

County,  State  of ,  on  the  day  of , 

19 — ,  and  that  said  will  was  executed  according  to  the  laws  of 
the  said  State  of ,  in  which  State  the  same  was  made : 

It  is  Therefore  ordered  that  said  instrument  in  writing,  so 

filed  in  the court  of County,  State  of ,  and 

made  and  executed  in  accordance  with  the  laws  of  said  State, 


§793  merwine's  trial  of  title  to  land.  564 

a  copy  of  which  said  last  will  and  testament  is  hereto  attached, 
be  admitted  to  probate  in  this  county,  as  the  last  will  of  said 

,  deceased,  and  that be  appointed  executor  of  said 

estate,  and  that  letters  testamentary  issue  to  said ,  on  his 

taking  the  oath  required  by  law  and  giving  bond  as  required  by 
law  for  the  faithful  execution  of  the  duties  of  his  trust  in  the 

sum  of  $ ,  vnth  sureties  to  be  approved  by  the  judge  of 

this  court. 

Done  in  open  court  this day  of ,  19 — , 


[Seal.]  Judge  of  the  County  Court. 

Sec.  793.    The  procedure  by  which  a  lost  will  is  admitted  to 
probate. 

In  the  County  Court  in  and  for County,  Oklahoma. 

In  the  Matter  of  the  Estate 

of ,  Deceased.  No.  . 

PETITION  FOR  LEAVE  TO  MAKE  PROOF  OF 
LOST  WILL. 

Comes  now and  states  to  the  court  that  he  is of 

,  deceased;  that  said  died  on  the  day  of 

,  19 — ,  in  what  is  now  County,  Oklahoma ;  that 


said left  no  children  or  other  descendants,  but  left  as  his 

only  heirs  at  law,  the  following  named  persons,  to-wit:  , 

his  widow;  ,  of  ,  Oklahoma,  a  brother;  ,  of 

,  Oklahoma,  a  brother;  ,  of  ,  Oklahoma,  a 

sister ;  and  that  said left  a  last  "u^ll  and  testament,  which 

was  unrevoked  and  uncanceled  at  the  time  of  his  death  ;  that  said 

will,  at  the  time  of  the  death  of  the  said ,  was  in  the  care 

and  custody  of  one  ,  of  ,  and  was,  by  the  said 

,  sent  to  ,  the  then  clerk  of  the  court  for 

the  County  of  ;  that  said  will,  while  in  the  pos- 
session of  said ,  has  been  inadvertently  lost  or  destroyed ; 

that  diligent  search  has  been  made  for  the  same  both  among  the 

public  and  private  papers  of  the  said  ,  but  no  trace  of 

said  will  can  be  found;  that  by  said  will,  ^aid  disposed 


565  DESCENT    AND    DISTRIBUTION.  §  794 

of  his  property  of  every  kind  and  nature  whatsoever,  and  made 

one  ,  his  niece,  a  daughter  of  the  above  named  , 

his  sole  heir  and  legatee  ;  that  said left  almost  no  personal 

property,  and  his  estate  was  almost  altogether  real  estate,  situ- 
ated near  ,  in  what  is  now  County,  Oklahoma; 

that  said  will  was  properly  signed,  executed,  acknowledged  and 
witnessed  according  to  law,  and  was  a  valid  and  subsisting  will ; 

that  the   will  of  said  was  never  filed  or  admitted  to 

probate,  and  no  letters  testamentary  or  of  administration  have 
been  issued  on  his  said  estate;  that  there  has  been  no  legal  set- 
tlement of  his  affairs,  and  his  property  and  effects  have  never 
been  placed  in  the  hands  of  any  legal  custodian. 

Wherefore,  your  petitioner  prays  the  court  that  notice  be 
issued  to  all  persons  interested  that  a  day  be  set  for  the  hearing 
of  this  petition,  and  that  proof  be  taken  of  said  last  will  and 

testament  of  said  ,   according  to  the  statute  made  and 

provided  in  case  of  a  lost  or  destroyed  will. 


Attorney  for . 

State  of  Oklahoma,  County,  ss. : 

,  being  first  duly  sworn,  on  his  oath,  says  that  he  is  the 


of ,  mentioned  in  the  above  petition,  and  a  nephew 

of ,  deceased ;  that  the  facts  stated  in  the  above  and  fore- 
going petition  are  true  to  the  best  of  his  knowledge  and  belief. 


Subscribed  in  my  presence  and  sworn  to  before  me  this 
day  of ,  19—.  


[Seai..]  Notary  Public. 

My  commission  expires . 

Sec.  794.    Form  for  order  of  hearing  petition  for  leave  to 
take  proof  of  lost  will. 

State  of  Oklahoma, County,  ss. : 

In  the  County  Court. 
In  the  Matter  of  the  Estate 

of ,  Deceased.  No.  . 


§  795  merwine's  trial  op  title  to  land.  566 

ORDER  FOR  HEARING  PETITION  TO  TAKE  PROOF  OP 

LOST  WILL. 

Now,  on  this day  of ,  19 — ,  having  filed 

herein  his  petition,   praying  the   court  that  a  day  be  set  for 

hearing  proof  of  the  last  will  and  testament  of ,  deceased, 

and  alleging  that  said  will  has  been  lost  or  destroyed : 

It  is  ordered  that  said  petition  be,  and   hereby  is,  set   for 

hearing  on  the  day  of  ,  19 — ,  at  o'clock, 

— ■  m.,  at  which  time,  all  persons  interested  in  said  estate  are 
required  to  appear  and  show  cause,  if  any  they  have,  why  the 
prayer  of  said  petition  should  not  be  granted. 

It  is  further  ordered  that  a  copy  of  this  order  be  served  per- 
sonally on  all  persons  interested  in  said  estate,  residing  in 

County,  and  that  publication  thereof  be  made  by  printing  the 

same  in  the  ,  a  newspaper  of  general  circulation  in  this 

county,  for consecutive  weeks  prior  to  said day  of 

,  19—.  , 


[Seal.]  Judge  of  the  County  Court. 


Sec.  795.     Form  for  proof  of  publication. 

State  of  Oklahoma, County,  ss. : 

,  being  duly  sworn,  deposes  and  says :  that  he  is  the 

of  the ,  a  w^eekly  newspaper  printed  and  published 

at   ,   in   said   county,   and  having   a  general   circulation 

therein ;  that  a  notice,  of  which  the  annexed  is  a  true  copy,  was 

published  for  consecutive  weeks  in  said  newspaper,  the 

first  publication  in  said  newspaper  being  in  the  issue  thereof 

bearing  date  of  ,  19 — ,  and  the  last  publication  of  said 

notice  in  said  newspaper  being  in  the  issue  thereof  bearing  date 
of  ,  19—.  . 

Subscribed  and  sworn  to  before  me  by  ,  this  

day  of  ,  19—.  , 


[Seal.]  Notary  Public. 

My  commission  expires  .  * 


567  DESCENT    AND    DISTRIBUTION.  §§796,797 

Sec.  796.    Form  for  the  annexed  notice  by  publication. 

State  of  Oklahoma, County,  ss. : 

In  the  County  Court. 

In  the  Matter  of  the  Estate 

of ,  Deceased.  No. . 

Now,  on  this day  of ,  19—  having  filed 

herein  his  petition,  praying  the  court  that  a  day  be  set  for  hear- 
ing proof  of  the  last  will  and  testament  of ,  deceased,  and 

alleging  that  said  will  has  been  lost  or  destroyed : 

It  is  ordered  that  said  petition  be,  and  hereby  is,  set  for  hear- 
ing on  the day  of ,  19—  at o'clock,  —  m., 

at  which  time  all  persons  interested  in  said  estate  are  required 
to  appear  and  show  cause,  if  any  they  have,  why  the  prayer  of 
said  petition  should  not  be  granted. 

It  is  further  ordered  that  a  copy  of  this  notice  be  served  per- 
sonally on  all  persons  interested  in  said  estate,  residing  m 
County,  and  that  publication  thereof  be  made  by  print- 
ing the  same  in  the  ,  a  newspaper  of  general  circulation 

in    this    county,    for    consecutive    weeks    prior    to    the 

day  of ,  19—.        ■ -' 

^gEAL.]  Judge  of  the  Countij  Court. 

Sec.  797.    Form  for  order  for  hearing  proof  of  lost  will. 

In  the  County  Court  tn  and  for County,  Oklahoma. 

In  the  INIatter  of  the  Estate 

of ,  Deceased.  N^-  • 

ORDER  FOR  HEARING  PROOF  OF  LOST  WILL. 
This  cause  coming  on  this  day  for  hearing  on  the  petition  of 
wherein  he  states  that died  at ,  Oklahoma, 


on  or  about  the day  of  ,  19—,  leaving  a  last  will 

and  testament,  which  since  his  death  has  been  lost  or  destroyed, 
and  prays  the  court  that  a  day  be  set  for  hearing  proof  taken  of 
said  lost  \^dll,  as  provided  by  law ;  and  the  court,  after  hearing 
said  petition  and  the  evidence  and  the  arguments  of  counsel,  and 


§  798  MERWINE  'S    TRIAL    OP    TITLE    TO   LAND.  568 

being  fully  advised  in  the  premises,  finds  the  facts  as  stated  in 
said  petition  to  be  true,  and  that  the  prayer  of  said  petition 
should  be  granted. 

It  is  Therefore  considered  by  the  court  and  so  ordered,  that 
notice  be  served  on  all  persons  interested  according  to  law,  and 

that  proof  be  taken  of  said  lost  will  at  the  county  court  of 

County,  sitting  in  probate,  on  the  day  of  ,  19 — , 

at o'clock,  —  ra.,  and  said  proof  reduced  to  writing  and 

filed  in  this  court  according  to  the  statute  in  such  cases  made 
and  provided. 

Witness  my  hand  and  the  seal  of  said  court  this day 

of ,  19-.  , 

[Seal.]  Judge  of  the  County  Court. 


Sec.  798.    Form  for  notice  of  the  hearing  of  the  proof  of  lost 
will. 

In  the  County  Court  in  and  for County,  Oklahoma. 

In  the  Matter  of  the  Estate 

of ,  Deceased.  No. . 

NOTICE  OF  HEARING  PROOF  OF  LOST  WILL. 

Whereas,  did,  on  the day  of ,  19 — ,  file 

in  this  court  a  petition  in  which  he  alleges  that  died  on 

or  about  the day  of ,  19 — ,  and  left  a  last  will  and 

testament  disposing  of  all  the  property  of  said ,  and  that 

said  last  will  has  been  lost  or  destroyed,  and  praying  that  a  day 
be  set  for  hearing,  and  an  order  be  made  to  take  proof  of  said 

last  will  as  by  law  provided;  and  the  court,  on  the  day 

of ,  19 — ,  after  hearing  the  said  petition,  found  the  facts 

stated  in  said  petition  were  true,  and  that  the  prayer  of  said 
petition  should  be  granted;  thereupon  the  court  directed  that 
proof  be  taken  of  said  lost  will  at  the  office  of  the  judge  of  the 

county  court  in  ,  Oklahoma,  and  that  notice  of  the  time 

and  place  of  said  hearing  be  served  on  all  persons  interested 
according  to  law.  .  » 


569  DESCENT    AND    DISTRIBUTION.  §§799,800 

Public  notice  is  hereby  given  that,  on  day  of 


19 — ,  at  o'clock,  —  m.,  proof  of  said  lost  will  will  be 

taken  at  the  office  of  the  judge  of  the  county  court  in  

County,  Oklahoma,  and  said  proof  reduced  to  writing  and  filed 
in  the  office  of  the  judge  of  said  county  court,  as  by  law  pro- 
vided, at  which  time  and  place  all  persons  interested  in  said 
estate  are  required  to  appear  and  show  cause,  if  any  they  have, 
why  said  proof  should  not  be  taken. 


[Seal.]  Judge  of  the  County  Court. 

Sec.   799.     Form  for  proof   of  publication  of  the  foregoing 
notice.* 

Sec.  800.     The  form  for  the  decree  of  court  restoring  lost  will. 

State  of  Oklahoma, County,  ss. : 

In  the  County  Court. 
In  the  ]\Iatter  of  the  Estate 

of ,  Deceased.  No. . 

DECREE  OF  COURT  RESTORING  LOST  WILL  AND 
TESTAMENT. 

This  day  this  cause  coming  on  for  hearing,  the  same  having 
been  regularly  joined  for  trial,  the  court  finds  that  each  and 
every  person  interested  in  said  matter  was  served  with  the  notice 
required  by  law,  or  \^ith  service  by  publication  in  the  manner 
and   form  as  required  by  law  and  the  statute,  and  that  said 

executed  said  last  will  and  testament  as  in  the  petition 

set  forth. 

It  is  ordered  and  decreed  that  all  the  testimony  of  the  \\dt- 
nesses  shall  be  reduced  to  writing  and  signed  by  them,  and  said 
testiinony  filed  with  the  papers  in  this  case  and  preserved  for 
future  reference. 

*  This  is  the  same  in  manner  anfl   form     as    the    one    just     preceding 
herein. 


§  800  merwine's  trial  of  title  to  land.  570 

It  is  further  ordered  and  decreed  that  the  following  be,  and 
hereby  are,  declared  to  be  each  and  all  of  the  terms  and  pro- 
visions, together  with  the  signing,  execution  and  acknowledg- 
ment of  said  last  will  and  testament,  to-wit:  (Here  insert  the 
will  as  found  by  the  court),  and  I  hereby  certify  under  the  seal 
of  this  court,  that  the  foregoing  are  oil  the  terms  and  provisions 
of  said  will  as  required  by  the  statute  in  such  cases  made  and 
provided. 

Done  in  open  court  this day  of ,  19 — . 


[Seal.]  Judge  of  the  County  Court. 


CHAPTER   XIII. 


LAW  AND  PROCEDURE  IN  FORCIBLE  ENTRY  AND 
DETENTION  ACTIONS. 


SECTION 

801.  History  of   subject. 

802.  Forcible  entry  and  detainer,  a 

misdemeanor. 

803.  In    what    court    action    to    be 

brought. 
i804.  The  notice  to  quit — How  served. 
SOo.  The    proof    of    service    of    the 

notice. 

806.  The  three  days  counted  how. 

807.  The  justice   shall  give  restitu- 

tion, when. 

808.  The  extent  of  jurisdiction. 

809.  The  action  -^ill  never  try  title. 

810.  The  action  will  lie  against  the 

holder   of   a   valid   title,   who 
acquires   possession   by    force. 

811.  The   complaint. 

812.  Xo    pleadings    required   of    de- 

fendant. 

813.  Procedure — The   summons. 

814.  Service   of    summons. 

815.  Trial     if     defendant     fails     to 

appear. 

816.  Continuance — How  secured. 

817.  The    measure    of    damages    for 

unlawfully     detaining     prop- 
erty. 

818.  Trial  and  judgment  by  justice. 


SECTION 

819.  Trial  and  verdict   by  jury. 

820.  Exceptions. 

821.  The    issues    on    appeal    to    the 

county  court. 

822.  Execution — Form    provided    by 

statute. 

823.  Stay  of  proceedings. 

824.  Form  for  notice  to  vacate. 

825.  Form  for   complaint  generally. 

826.  Form  for  complaint  for  peace- 

able entry  and  forcible  hold- 
ing. 

827.  Form    for     complaint    against 

occupier     of     lands     without 
color  of  title. 

828.  Another  form  for  complaint. 

829.  Form  for  summons  and  officer's 

return  of. 

830.  Form  for  affidavit  for  continu- 

ance. 

831.  Form     for     jury     venire     and 

officer's    return    of. 

832.  Form  for  verdict  for  plaintiff. 

833.  Form  for  verdict  for  defendant. 

834.  Form  for  judgment  on  the  ver- 

dict. 

835.  Form   for   writ   of    restitution. 


Sec.  801.    History  of  subject. 

This  action  originated  by  statute  in  England.  It  grew  out 
of  the  fact  that,  at  common  law,  a  man  disseized  of  his  land, 
might  recover  possession  by  force.  By  using  force  to  get 
possession,  the  party  thus  acquiring  possession,  subjected  him- 
self to  a  criminal  action  for  the  wrong,  and  the  party  disseized 
had  no  legal  method  whereby  he   could   acquire   possession. 


571 


§§802,803         merwine's  trial  of  title  to  land.  572 

Following  the  acts  of  Parliament  on  this  subject,  the  various 
States  of  the  Union  have  provided  remedies  for  anyone  so 
disseized.  The  Legislature  of  this  State  has  provided  a 
remedy  not  only  in  cases  where  the  possession  is  lost  by 
force  and  arms,  but  where  the  possession  was  lawfully  ob- 
tained, but  afterwards,  unlawfully  held  and  detained.  It  is  a 
criminal  as  well  as  a  civil  action. 

Sec.  802.     Forcible  entry  and  detainer,  a  misdemeanor. 

The  criminal  statutes  of  this  State  provide  that  every 
person  guilty  of  using  or  procuring,  encouraging  or  assisting 
another  to  use  any  force,  or  violence,  in  entering  upon  or 
detaining  any  lands  or  other  possession  of  another,  except 
in  the  cases  and  manner  allowed  by  law,  is  guilty  of  a  mis- 
demeanor.^ The  statute  further  provides  that,  every  person 
who  has  been  removed  from  any  lands  by  process  of  law,  or 
who  has  removed  from  any  lands  pursuant  to  the  lawful 
adjudication  or  direction  of  any  court,  tribunal  or  other 
officer,  and  who  afterward,  without  authority  by  law,  returns 
to  settle  or  reside  upon  said  lands,  is  guilty  of  a  misde- 
meanor.- It  further  provides  that  every  person  who  intrudes 
or  squats  upon  any  lot  or  piece  of  land  within  the  bounds  of 
any  incorporated  city  or  village,  without  license  or  authority 
from  the  owner  thereof,  or  who  erects  or  occupies  thereon 
any  hut,  hovel,  shanty  or  other  structure  whatever  without 
such  license  or  authority ;  and  every  person  who  places,  erects 
or  occupies  within  the  bounds  of  any  street  or  avenue  of  such 
city,  or  village,  any  hut,  hovel,  shanty  or  other  structure 
whatever,  is  guilty  of  a  misdemeanor.^ 

Sec.  803.    In  what  court  the  action  to  be  brought. 

The  action  can  be  brought  only  in  the  court  of  justices  of 
the  peace.  The  jurisdiction  so  conferred  is  original  to  try 
all    actions    for    forcible    entry    and    detention,    or    detention 

1  Snyder,    2,513;    Wilson,    2,390;  2  Snyder,    2,514;     Wilson.    2,391; 

Dakota   Code,   6,693    (1887);    Faust  Dakota  Code,    6,694    (1887). 

V.   Territory,   8   Okla.   541,   58   Pac.  3  Snyder,    2,515:     Wilson,    2,392; 

728.  Dakota  CoBe,  6,695    (1887). 


573  FORCIBLE   ENTRY    AND   DETENTION  §  804: 

only,  of  real  property,*  and  the  judgment  in  this  court,  or 
any  other  court  to  which  the  action  may  be  appealed,  will 
not  be  a  bar  to  any  other  action  brought  by  either  party.^ 
The  Legislature  wisely  made  this  provision  in  order  that 
title  may  be  tried  in  an  appropriate  action  in  the  district 
court;  for,  if  it  were  not  for  this  provision,  the  judgment 
of  the  justice  court  might  be  regarded  as  res  adjudicata,  and 
it  would  thus  preclude  the  district  courts  deciding  questions 
of  title.*^ 

Sec.  804.    The  notice  to  quit — How  served. 

It  is  made  the  duty  of  the  party  desiring  to  commence  an 
action  under  this  chapter,  to  notify  the  adverse  party  to 
leave  the  premises,  for  the  possession  of  which  the  action  is 
about  to  be  brought,  and  the  notice  must  be  served  at  least 
three  days  before  the  commencement  of  the  action,  by  leaving 
a  written  copy  with  the  defendant,  or  at  his  usual  place  of 
abode,  if  he  cannot  be  found ;  such  notice  may  also  be  served 
by  leaving  a  copy  thereof  with  some  person  over  twelve 
years  of  age,  on  the  premises  described  in  the  notice/ 

If  any  considerable  interval  of  time  intervene  between  the 
giving  of  the  notice  and  the  commencement  of  the  action,  it 
will  operate  as  a  waiver  of  the  notice.^  The  notice  is  waived 
in  cases  where  the  action  is  brought  for  failure  to  pay  rent, 
and  the  relation  of  landlord  and  tenant  is  denied  by  the 
defendant.®  The  names  of  the  parties  who  claim  the  property 
need  not  appear  in  the  body  of  the  notice  to  quit,  if  the  names 
are  signed  to  the  notice  given/*' 

4  Snyder,  6,428;  McDonald  v.  Richardson  v.  Penny,  6  Okla.  328, 
Stiles,    7    Okla.   327,    54   Pac.    487;        50  Pac.  231. 

McClung   V.    Penny,    11    Okla.    477,  » New,    etc.,   v.    Collins,   21    Okla. 

m  Pac.  499;   Anderson  v.  Ferguson,  430,  96   Pac.  607. 

12  Okla.  307,  71  Pac.  225.  9  Poison  v.  Parsons,  104  Pac.  336. 

5  Snyder,  6,431;  Wilson,  5,088;  lo  Vansellous  v.  Huene,  108  Pac. 
Kansas,  5,016    (1889).  1,102;     Oklahoma    City    v.    Hill,    4 

eZahn  v.  Obert,  103  Pac.  704.  Okla.  521,  46  Pac.  568;  Conoway  v. 

7  Snyder,    6,432;     Wilson,    5,089;  Core,    22    Kan.    216;     Douglass    v. 

Kansas,  5,017  (1889);  Gardner  v.  Whitaker,  32  Kan.  381,  4  Pac.  874. 
Kime,   20   Okla.   784,   95   Pac.   242; 


§§805,806       merwine's  trial  of  title  to  land.  574 

In  the  State  of  Ohio,  where  its  statutes  are  similar  to 
those  of  this  State,  it  has  been  held  that  three  days'  notice 
to  the  tenant  holding  over,  to  quit,  may  be  served  as  well 
before,  as  after  the  end  of  the  term.^^  The  notice  may  be 
given  by  an  agent  in  his  own  name  as  agent.^^  But  the 
person  who  claims  the  premises  is  the  only  person  who  may 
bring  the  action  under  the  notice." 


Sec.  805.    The  proof  of  service  of  the  notice. 

It  is  not  competent  to  prove  the  service  of  this  notice  to 
quit,  by  the  indorsement  on  the  same  of  the  manner  of 
service  by  the  person  who  serves  it.  Such  service  is  an  in- 
dependent fact  and  must  be  proved  as  any  other  item  of 
evidence  in  the  case.  The  notice  should  clearly  show  who 
claims  the  right  of  possession,  and  who  makes  the  demand, 
as  such  person  alone  can  maintain  the  action  under  the 
notice,^* 

Sec.  806.     The  three  days  counted,  how. 

In  computing  the  three  days  for  the  service  of  the  notice 
required  by  statute,  the  time  is  counted  by  excluding  the 
first  day.  The  statute  of  this  State  fixes  the  manner  of  com- 
puting the  time  within  which  the  act  must  be  done.     It  says, 


11  Leutzy  v.  Herchelrode,  20  0.  S.  i*  Best  v.  Frazier,  16  Okla.  523, 
334.  85    Pac.     1,119.      Where    the    com- 

12  Fitzgerald  v.  Kunn,  18  0.  C.  C.  plaint  is  founded  on  a  notice  which 
(Ohio),  608.  fails  at  the  trial,  the  plaintiff  may 

13  Best  V.  Frazier,  16  Okla.  523,  be  allowed  to  amend  his  pleadings 
85  Pac.  1,119.  The  following  cases  to  conform  to  the  proof,  and  base 
show  the  nature  and  kind  of  notice  his  case  upon  another  notice  served 
required  in  forcible  entry  and  dc-  more  than  three  days  before  the 
tainer  actions.  Douglass  v.  Ander-  commencement  of  the  action.  Best 
son,  4  Pac.  (Kan.)  257;  Stullar  v.  v.  Frazier,  16  Okla.  529,  85  Pac. 
Parks,  31   Pac.    (Kan.)    301;    Peddi-  1,119. 

cord  V.  Beck,  86  Pac.    (Kan.)    465; 
Douglass  V.  Parker,  5  Pac.  178. 


575  FORCIBLE   ENTRY   AND   DETENTION.  §§807,808 

"The  time  shall  be  computed  by  excluding  the  first  day  and 
including  the  last;  if  the  last  be  Sunday,  it  shall  be  ex- 
cluded. "^^ 

Sec.  807.    The  justice  shall  give  restitution,  when. 

Any  justice,  within  his  proper  county,  is  given  power  to 
inquire,  in  the  manner  hereinafter  directed  in  this  chapter, 
as  well  against  those  who  make  unlawful  and  forcible  entry 
into  lands  and  tenements,  and  detain  the  same,  as  against 
those  who,  having  a  lawful  and  peaceable  entry  into  lands  or 
tenements,  unlawfully  and  by  force,  hold  the  same,  and  if  it 
be  found,  upon  such  inquiry,  that  an  unlawful  and  forcible 
entry  has  been  made,  and  that  the  same  lands  or  tenements 
are  held  unlawfully,  then  such  justice,  under  the  law,  is 
required  to  cause  the  party  complaining  to  have  restitu- 
tion thereof.^'' 

Sec.  808.    The  extent  of  jurisdiction. 

Proceedings  under  the  law,  as  set  forth  in  this  chapter, 
may  be  had  in  all  cases  against  tenants  holding  over  their 
terms;  in  sales  of  real  estate  on  execution,  orders  or  other 
judicial  process,  where  the  judgment  debtor  was  in  posses- 
sion at  the  time  of  the  rendition  of  the  judgment,  or  decree, 
by  virtue  of  which  such  sale  was  made  in  sales  by  executors, 
administrators,  guardians  and  on  partition,  where  any  of 
the  parties  to  the  partition  were  in  possession  at  the  com- 
mencement of  the  suit,  after  such  sales,  so  made,  on  execution 
or  otherwise,  have  been  examined  by  the  proper  court,  and 
the  same  by  said  court,  adjudged  legal;  and  in  cases  where 

15  Snyder,    5,558;    Wilson,    4,918;  214;     Buck    v.    Davidson,    79    Pac. 

Kansas,    5,218     (1901);    Schultz    v.  119;    Van  Lear  v.   Kansas,  etc.,   43 

Hine,  18  Pac.   (Kan.)   221;   Hook  v.  Pac.    1,134;    City  v.  Jones,  44  Pac. 

Bixby,     13     Kan.     164;     Dougherty  273;    Dwelling  v.   Osborne,   40   Pac. 

V.  Porter,  18  Kan.  206;    Neutzel  v.  1,089;     Beckwith    v.    Douglass,     25 

Hunter,    19    Kan.    291;    Worthy    v.  Kan.   229. 

Cooper,      23      Kan.     432;      Warner  is  Snyder,    6,429;    Wilson,    5,086; 

V.  Bucher,  24  Kan.  478;   English  v.  Kansas,     5,014     (1889);     Nebraska, 

Williamson,    34    Kan.    212,    8    Pac.  1,962    (1907). 


§  809  merwine's  trial  of  title  to  land.  576 

the  defendant  is  a  settler  or  occupier  of  lands  and  tenements 
without  color  of  title,  and  to  which  the  complainant  has  the 
right  of  possession.  This  provision  of  the  statute  is  not  to  be 
construed  as  limiting  the  other  provisions  hereinbefore  set 
forth.i^ 

Sec.  809.    The  action  will  never  try  title. 

The  forcible  entry  and  detainer  statute  providing  a  speedy- 
recovery  for  the  possession  of  real  estate,  can  never  be  used 
to  try  the  title  to  lands  in  question.  The  action  is  to  recover 
possession.  It  is  difficult  to  understand,  sometimes,  what  is 
meant,  when  it  is  said  that  the  action  can  never  be  made 
to  determine  title ;  for  even  in  the  simple  action  of  getting 
possession,  the  possession  must  necessarily  involve  the  validity 
of  some  legal  conveyance.  The  deeds  and  other  conveyances 
of  title  may  be  offered  in  evidence  as  proof  of  the  right  of 
possession. ^^  The  question  of  title  may  be  an  incident  to,  or 
evidence  of,  the  right  of  possession,  and  in  the  trial  of  a  forcible 
entry  and  detainer  case,  the  title  may  be  inquired  into  suffi- 
ciently to  determine  the  right  of  possession,  and  for  such 
purpose  only.* 

If  the  question  of  ownership,  or  in  which  party  the  title 
may  be,  is  not  properly  in  issue  in  the  case,  then  the  mere 
claim  of  title,  or  offer  in  evidence  of  a  deed  of  conveyance 
by  one  of  the  parties,  will  not  raise  the  question  of  title  so 
as  to  divest  the  justice  of  jurisdiction.  Title  is  only  involved 
where  its  validity  may  properly  call  for  decision. ^^ 


17  Snyder,    6,430;    Wilson,    5,087;  ton,    12    Okla.    130,   69    Pac.    1,038; 
Kansas,  5,015    (1889).  Cunningham    v.    Morris,     12     Okla. 

18  Oklahoma  City  v.  Hill,  4  Okla.  132,   69  Pac.   1,133.  Under  the  stat- 
521,  46  Pac.  568.  iite    it    is    not    necessary    for    the 

*  McDonald     v.     Stiles,     7     Okla.  defendant  to  show  that  he  claimed 

327,    54   Pac.    487 ;    Bunn   v.   Harts-  the     ownership     of     the     premises, 

horn,   12   Okla.   121,   69  Pac.    1,049;  Where  it  is  showTi  that  he  has,  by 

Olds  V.  Congar,  1  Okla.  231,  32  Pac.  force,  dispossessed  the  plaintiflF,  the 

337.  action    need    not    be    predicated    on 

laChisholm  v.  Weise,  5  Okla.  217,  landlord  and  tenant.     Ibid. 
47  Pac.   1,086;    McQuestion  v.   Wal- 


577  FORCIBLE    ENTRY    AND    DETENTION.  §  810 

The  title  to  real  estate  where  the  right  to  possession  of 
the  same  is  in  controversy  in  the  action,  may  not  be  put  in 
issue  so  as  to  adjudicate  such  title,  for  in  such  action  the 
title,  as  such,  cannot  be  determined ;  it  being  merely  intended 
that  only  the  right  of  possession  should  be  tried  in  the 
action.^" 

Sec.  810.  The  action  will  lie  against  the  holder  of  a  valid 
title,  who  acquires  possession  by  force. 
The  very  purpose  of  the  law  of  forcible  entry  and  de- 
tainer is  that  anyone  in  the  possession  of  real  estate  shall  not 
be  turned  out  by  force  and  violence.  The  party  so  using 
force  may  have  a  superior  title,  and  may  have  a  better  right 
to  the  present  possession,  but  the  policy  of  the  law  has 
always  been  in  such  case,  to  forbid  any  person  righting  him- 
self in  cases  of  that  kind,  by  his  own  hand  and  by  violence, 
and  to  require  the  party  who  has  in  this  manner  obtained 
possession,  to  restore  it  to  the  party  from  whom  it  has 
been  so  obtained.  The  rule,  therefore,  in  such  case,  is 
that  the  action  of  forcible  entry  and  detainer  may  be  main- 
tained against  any  person  who  commits  forcible  entry  and 
ouster,  even  though  the  latter  is  the  owner  of  the  property 
and  entitled  to  the  immediate  possession,  if  the  plaintiff  had, 
at  the  time  of  the  forcible  entry  and  ouster,  the  actual  and 
peaceable  possession  thereof.-^ 

zoBrennan  v.  Shanks,  103  Pac.  487;  Petit  v.  Black,  12  N.  W.  841; 
704;  Oklahoma  City  V.  Hill,  4  Okla.  Worthington  v.  Woods,  34  N.  W. 
531,  46  Pac.  568;  Chisholm  v.  368 ;  Connoly  v.  Giddings,  37  N.  W. 
Weise,  5  Okla.  217,  47  Pac.  1,086;  939;  Malloy  v.  Malloy,  40  X.  W. 
Bunn  V.  Hartshorn,  12  Okla.  121,  235;  Post  v.  Bohner,  36  X.  W.  308; 
69  Pac.  1,049;  McQniston  v.  Wal-  Green  v.  Morris,  77  N.  W.  925;  Luck 
ton,  12  Okla.  130;  69  Pac.  1,048;  v.  Sulpher,  10  N.  W.  409;  Tarpenny 
■Conoway  v.  Gore,  27  Kan.  122;  v.  King,  82  N.  W.  409. 
Buettenger  v.  Hurley,  34  Kan.  585,  21  Oklahoma  City  v.  Hill,  4  Okla. 
9  Pac.  197;  Owen  v.  Wickham,  ?8  521,  46  Pac.  568;  Campbell  v.  Coon- 
Kan.  225,  16  Pac.  335;  McClain  radt,  22  Kan.  704;  Conaway  v. 
V.  Jones,  60  Kan.  639,  57  Pac.  500;  Gore,  27  Kan.  127;  Burdette  v. 
Stover  V.  Hagebaker,  60  N.  W.  Corgan,  27  Kan.  275;  Buettinger  v. 
597;    Wilson   v.    Young,    19    N.    W.  Hurley,    9    Pac.     197;     Emssley    v. 


§810 


MERWINE  S   TRIAL   OF    TITLE   TO   LAND. 


578 


Since  the  question  of  title  cannot  be  tried  in  the  action, 
the  defense  that  plaintiff's  deed  was  procured  by  fraud,  is 
invalid,  and  cannot  be  set  up  in  the  action.-^  Again,  when, 
in  order  to  determine  whether  either  party  has  the  right  to 
the  paramount  legal  or  equitable  title,  then  the  rights  of 
the  parties  cannot  be  determined  in  the  action.-''  Equities 
between  the  parties  cannot  be  determined,  but  the  action  will 
lie  to  recover  from  the  settler  with  color  of  title,  the  lands 
to  which  plaintiff  has  the  right  of  possession.^*  In  concluding 
the  discussion  of  the  propositions  hereinabove  set  forth  the 
author  would  suggest  to  the  practitioner,  to  keep  in  mind 
always,  that  the  action  of  forcible  entry  and  detainer  will 
determine  only  whether  the  plaintiff  or  defendant  have,  on 
the  face  of  the  instrument  under  which  either  claim  the  right 
to  the  possession,  the  right  to  the  immediate  possession.  If, 
in  order  to  determine  this  right  of  immediate  possession,  the 


Bennett,  37  la.  1 5 ;  Brown  v.  Fagiiis, 
55  K  W.  (Neb.)  1,048;  Railroad 
V.  Johnson,  119  U.  S.  f.08,  7  Sup.  Ct. 
340.  An  action  of  forcible  entry 
and  detainer  may,  under  the  statute 
of  this  territory,  as  construed  by 
the  Supreme  Court  of  Kansas,  before 
its  adoption,  be  maintained  by  one 
who  was,  without  right,  in  the 
actual  and  peaceable  possession  of 
the  premises,  even  against  the  true 
owner,  who  ousts  him  of  such  pos- 
session by  force;  and  in  a  case 
where  it  is  shown  that  the  plain- 
tiffs were  in  the  actual  and  peace- 
able possession  of  certain  town  lots, 
lots,  with  the  buildings  thereon,  in 
one  of  which  the  plaintiffs  were 
running  a  saloon,  and  the  sheriff 
arrested  the  plaintiffs  under  a 
charge  of  violation  of  the  liquor 
laws,  and  removed  them  and  their 
goods  and  furniture  fiom  the  build- 
ing,   and    while    they    were    under 


arrest  for  a  short  time,  the  sheriff 
permitted  the  officers  of  the  city 
who  were  standing  by,  to  enter  into 
possession  of  the  building,  and  keep 
the  plaintiffs  therefrom,  it  is  held, 
that  the  plaintiffs  may  maintain 
their  action  of  forcible  entry  and 
detainer,  and  that  in  such  case,  it 
is  not  error  to  sustain  an  objection 
to  the  introduction  of  evidence 
tending  to  show  that  the  sheriff  had 
a  right  to  arrest  the  plaintiffs,  and 
take  their  goods  and  furniture  froin 
the  premises,  and  that  the  defendant 
had  a  deed  to  said  premises,  and 
that  the  plaintiffs  had  no  right  to 
the  possession  thereof. 

22Dysart  v.  Enslow,  7  Okla.  386, 
54  Pac.  550. 

23  Jones  V.  Seawell,  13  Okla.  711, 
76  Pac.   154. 

24  Cope  V.  Braden,   11  Okla.  291, 
67  Pac.  475. 


579  FORCIBLE   ENTRY   AND   DETENTION.  §§  811-813 

title  must  be  corrected  in  any  way,  or  a  trust  declared,  then 
the  action  must  be  brought  in  the  district  court  for  that 
purpose. 

Sec.  811.    The  complaint. 

The  action  is  brought  by  filing  the  complaint  in  the  justice's 
court.  The  property  for  the  possession  of  which  the  action 
is  brought  should  be  described  accurately.  However,  a  slight 
error  in  the  description,  which  does  not  mislead  the  defend- 
ant, will  not  be  regarded."^  And  the  complaint  need  not 
allege  with  particularity  all  the  facts  relied  on.  It  will  be 
sufficient  if  it  contains  the  language  of  the  statute.'" 
Sec.  812.     No  pleadings  required  of  the  defendant. 

The  defendant  in  an  action  for  forcible  entry  and  detainer, 
is  not  required  to  file  any  pleadings;  and  since  a  defense 
may  be  interposed,  it  is  not  reversible  error  to  strike  from 
the  files  any  special  defense  which  may  have  been  interposed.^^ 

Sec.  813.     Procedure — The  summons. 

The  summons  cannot  issue  in  the  action  until  the  plaintiff 
has  filed  his  complaint  in  writing  under  oath,  with  the  justice, 
which  must  particularly  describe  the  premises  so  entered 
upon  and  detained,  and  which  must  set  forth  either  an  unlaw- 
ful or  forcible  entry  and  detention,  or  an  unlawful  and 
forcible  detention  after  a  peaceable  or  lawful  entry  of  the 
described  premises.-* 

25Congor  V.  Olds,  1  Okla.  232,  S2  28  Snyder,    6,433;    Wilson,    5,090; 

Pac.  337;  Murphy  V.  Lucas,  2  Okla.  Kansas,     5,018     (1889);     Nebraska, 

255.  1,966     (1907);    Blaco   v.    Hallar,    1 

26  Greenameyer  v.  Coate,  12  Okla.  N.    W.    978;    Moore   v.    Parker,    80 

452,  72  Pac.  377;  McClungv.  Penny,  N.    W.    572;    Lock    v.    Skowell,    91 

11   Okla.  477;   69  Pac.  499;   Rice  v.  N.  W.  572;   Blanchel  v.   Freeze,  52 

West,    10    Okla.    1,    33    Pac.    706;  N.  W.  1,101;  Keykundall  v.  Clinton, 

Schlegel  v.  Link,   105   Pac.    (Okla.)  3    Kan.    78;     Wilson    v.    Campbell, 

652,    overruling    Rice    v.    West,    33  75  Kan.  159,  88  Pac.  548;   Richard- 

Pae.    (Okla.)    706;    Barto   v.   Abbe,  son  v.  Penny,  6  Okla.   328,  50  Pac. 

16    Ohio,    408;    Brown    v.    Burdick,  231;    Rice  v.  West,    10   Okla.   1,   33 

25  0.  S.  260.  Pac.  706    (overruled)  ;   Greenameypr 

2T  Smith  V.  Finger,   15  Okla.   120,  v.  Coate,  12  Okla.  452,  72  Pac.  377; 

79  Pac.  759 ;  Oklahoma  City  v.  Hill,  Schlegel  v.  Link,  25  Okla.  263,  105 

4  Okla.  521,  46  Pac.  568.  Pac.  652. 


§§  814-817        merwine's  trial  of  title  to  land,  580 

Sec.  814.    The  service  of  summons. 

The  summons  must  be  issued  and  directed,  and  must  state 
the  cause  of  the  complaint,  and  the  time  and  place  of  trial, 
and  must  be  served  and  returned  as  in  other  actions.  It 
may  also  be  served  by  leaving  a  copy  thereof  with  some 
person  over  twelve  years  of  age,  on  the  premises  sought  to 
be  recovered,  and  such  service  must  be  at  least  three  days 
before  the  day  of  the  trial  appointed  by  the  justice.-^ 

Sec.  815.    Trial  if  defendant  fails  to  appear. 

If  the  defendant  does  not  appear  in  accordance  with  the 
requisition  of  the  summons,  and  it  shall  have  been  properly 
served,  the  justice  is  required  to  try  the  case  as  though  he 
were  present.^** 

Sec.  816.     Continuance — How  secured. 

No  continuance  will  be  granted  for  a  longer  period  than 
eight  days,  unless  the  defendant  applying  therefor,  give  an 
undertaking  to  the  adverse  party,  Avith  good  and  sufficient 
surety  to  be  approved  by  the  justice,  conditioned  for  the 
payment  of  all  damages,  and  double  the  rent  that  may  accrue, 
if  judgment  be  rendered  against  the  defendant.^^ 

Sec.  817.     The  measure  of  damages  for  unlawfully  detaining 
property. 

The  detriment  caused  by  the  Avrongful  occupation  of  real 
property,  in  cases  not  embraced  in  Sections  (2909,  2915,  2916 
and  2917,  Snyder,  and  2751,  2758  and  2757,  Wilson),  is  deemed 
to  be  the  value  of  the  use  of  the  property  for  the  time  of 
such  occupation,  not  exceeding  six  years  next  preceding  the 


29  Snyder,  6,434;  Wilson,  5,091;  si  Snyder,  6,436;  Wilson,  5,093; 
Kansas,  5,019   (1903).                                 Kansas,  5,321   (1889).    The  applica- 

30  Snyder,  6,435 ;  Wilson,  5,092 ;  tion  for  continuance  is  addressed 
Kansas,  5,020  (1889);  Nussick  v.  to  the  solemn  discretion  of  the 
Wigent,  56  N.  W.  493.  court.      Richardson    v.    Penny,    50 

Pac.  23  r. 


581  FORCIBLE   ENTRY   AND   DETENTION.  §  818 

commencement  of  the  action,  or  proceeding  to  enforce  the 
right  to  damages,  and  the  costs,  if  any,  of  recovering  the 
possession.  For  wilfully  holding  over  real  property  by  a 
person  who  entered  upon  the  same,  as  guardian  or  trustee 
for  an  infant,  or  by  right  of  an  estate  terminable  with  any 
life,  or  lives,  after  the  termination  of  the  trust  or  particular 
estate,  without  the  consent  of  the  party  immediately  entitled 
after  such  termination,  the  measure  of  damages  is  the  value 
of  the  profits  received  during  such  holding  over.  For  the 
failure  of  tenant  to  give  up  property  held  by  him,  when  he 
has  given  notice  of  his  intention  to  do  so,  the  measure  of 
damages  is  double  the  rent  which  he  ought  otherwise  to  pay. 
For  wilfully  holding  over  real  property  by  a  tenant  after  the 
end  of  his  term,  and  after  notice  to  quit  has  been  duly  given, 
and  demand  of  possession  made,  the  measure  of  damages 
is  double  the  yearly  value  of  the  property,  for  the  time  with- 
holding, in  addition  to  the  compensation  for  the  detriment 
occasioned  thereby.  For  forcibly  ejecting  or  excluding  a 
person  from  possession  of  real  property,  the  measure  of 
damages  is  three  times  such  a  sum  as  would  compensate  for 
the  detriment  caused  to  him  by  the  act  complained  of.^^ 

Sec.  818.    Trial  and  judgment  by  justice. 

If  the  suit  be  not  continued,  place  of  trial  changed,  or 
either  party  demand  a  jury  upon  the  return  day  of  the  sum- 
mons, the  justice  must  try  the  cause;  and,  if,  after  hearing 
the  evidence,  he  concludes  that  the  complaint  is  not  true,  he 
is  required  to  enter  judgment  against  the  plaintiff  for  the 
costs;  if  he  find  the  complaint  true,  he  is  required  to  enter  a 

32  Snyder,      2,908,      2.909,      2,915,  Oklahoma  City  v.  Hill,  4  Okla.  521, 

2,916     and     2,917;     Wilson,     2,750,  50  Pac.  242;   Wagener  v.  Lubenow, 

2,751,      2,757,      2,758      and     2,759;  112   N.   W.    (S.   D.)    247;    Olson   v. 

Dakota    Code,    4,610     (1887),    4,609  Hustner,  6  S.  D.  354,  61  N.  W.  247; 

(1887),  4,608    (1887),  4,601    (1887)  Baldwin  v.  Bohl,  122  N.  W.   (S.  D.) 

and     4,602      (1887);     •Chisholm     v.  247. 
Weise,  5  Okla.  217,   47  Pac.   1,088; 


§§  819,  820        MER wine's  trial  of  title  to  land.  582 

general  judgment  against  the  defendant  and  in  favor  of 
the  plaintiff,  for  the  restitution  of  the  premises,  and  for 
costs  of  suit;  if  he  find  the  complaint  true  in  part,  he  is 
required  to  render  judgment  for  the  restitution  of  such  part 
only,  and  the  costs  may  be  taxed  as  the  justice  deems  just 
and  equitable. ^^ 


Sec.  819.     Trial  and  verdict  by  jury. 

If  a  jury  be  demanded  by  either  party,  the  proceedings 
until  the  impaneling  thereof,  will  be  in  all  respects,  as  in 
other  cases.  The  jury  must  be  sworn,  or  affirmed,  to  well 
and  truly  try  and  determine  whether  the  complaint  of 
(naming  the  plaintiff)  about  to  be  laid  before  them,  is  true, 
according  to  the  evidence.  If  the  jury  find  the  complaint 
true,  they  must  render  a  general  verdict  of  guilty  against 
the  defendant;  if  not  true,  then  the  general  verdict  is  not 
guilty;  if  true  in  part,  then  a  verdict  setting  forth  the  facts 
they  find  true.  The  justice  must  enter  the  verdict  upon  his 
docket,  and  render  such  judgment  in  the  action  as  if  the 
facts  authorizing  the  finding  of  such  verdict  had  been  found 
to  be  true  by  himself.^* 


Sec.  820.    Exceptions. 

Exceptions  to  the  opinion  of  the  justice ;  in  cases  under  this 
head,  upon  questions  of  law  may  be  taken  by  either  party 
whether  tried  by  a  jury  or  otherwise.^^ 


33  Snyder,  6,437;  Wilson,  5,094;  35  Snyder,  6,439;  Wilson,  5,097; 
Kansas,  5,022  (1889);  Nebraska,  Kansas,  5,025  (1889);  Nebraska, 
1,970  (1907)  ;  Gallagher  V.  Connell,  1868  (1907);  Osborn  v.  Shotwell, 
36  N.  W.  566;    Osborn  v.   Shotwell,       50  N.  W.   164. 

50  N.  W.  164. 

34  Snyder,  6,438;  Wilson,  5,095; 
Kansas,  5,023  (1889);  Wilson  v. 
Young,   19   N.  W.   487. 


583  FORCIBLE   ENTRY    AND   DETENTION.  §§821,822 

Sec.  821.    The  issues  on  appeal  to  the  county  court. 

The  party  against  whom  a  judgment  is  rendered  in  a 
forcible  entry  and  detainer  action  is  not  entitled  to  a  new 
trial  by  the  same  court  as  a  matter  of  right;  and  on  appeal 
to  the  county  court,  every  portion  of  plaintiff's  cause  of 
action  which  was  put  in  issue  in  the  justice  court,  will  remain 
in  issue,  although  defendants  do  not  file  an  answer,  or  new  or 
amended  pleadings.^^ 


Sec.  822.    Execution — Form  provided  by  statute. 

Where  a  judgment  of  restitution  is  entered  by  the  justice, 
he  must,  at  the  request  of  the  plaintiff,  his  agent  or  attorney, 
issue  a  writ  of  execution  thereon,  which  shall  be  in  the 
following  form,  as  near  as  practicable : 

State  of  Oklahoma, County,  ss. : 

The  State  of  Oklahoma  to  any  Constable  in  County: 

Whereas,  in  a  certain  action  for  the  forcible  entry  and  de- 
tention (or  for  the  forcible  detention,  as  the  case  may  be)  of  the 

following  described  premises,  to-wit:  ,  lately  tried  before 

me,  wherein was  plaintiff,  and was  defendant,  a 

judgment  was  rendered  on  the  day  of  ,  A.  D. 

19 — ^  that  the  plaintiff  have  restitution  of  said  premises;  also 

that  he  recover  costs  in  the  sum  of  $ ;  you,  therefore,  are 

hereby  commanded  to  cause  the  defendant  to  be  forthwith  re- 
moved from  said  premises,  and  said  plaintiff  to  have  restitution 
of  the  same;  also  that  you  levy  of  the  goods  and  chattels  of 
said  defendant  to  make  the  costs  aforesaid,  and  all  accruing 
costs,  and  of  this  writ,  make  legal  service  and  due  return. 

Witness  my  hand  this day  of ,  A.  D.  19 — . 

A.  B.,  Justice  of  the  Peace.^'^ 


36Geter  v.   Ulerich,   28   Okla.   10,        1,974     (1907);     Lipp    v.    Hunt,    45 
113  Pac.  713.  X.  W.  685. 

37  Snyder,    6,440;    Wilson,    5,098; 
Kansas,    5,026     (1889);     Nebraska, 


584        merwike's  trial  of  title  to  land.  §§  823-825 

Sec.  823.    Stay  of  proceedings. 

The  officer  must,  within  ten  days  after  receiving  this  writ, 
execute  the  same  by  restoring  the  plaintiff  to  the  possession 
of  the  premises,  and  must  levy  and  collect  the  costs  and  make 
the  return  as  upon  other  executions.  If  the  officer  shall  re- 
ceive a  notice  from  the  justice  that  the  proceedings  have  been 
stayed  by  proceedings  in  error,  he  must  immediately  delay 
all  further  proceedings  upon  the  execution;  and  if  the  prem- 
ises have  been  restored  to  the  plaintiff,  he  must  immediately 
place  the  defendant  in  possession  thereof,  and  return  the 
writ  with  his  proceedings  and  costs  taxed  thereon.^^ 

Sec.  824.     Form  for  notice  to  vacate. 

To : 

Gentlemen: — This  is  to  notify  you  to  vacate  the   following 

described   real   estate   in  County,    State   of   Oklahoma, 

to-wit:    (Here  describe  real  estate  to  be  vacated.)     Your  com- 
pliance with  this  notice  within days  after  same  has  been 

served  upon  you  will  prevent  legal  measures  being  taken  by  me 
to  get  possession  thereof. 

Very  respectfully. 


Dated  this day  of ,  19—. 

Sec.  825.    Form  for  complaint  generally. 

State  of  Oklahoma, County,  ss. : 

. ,  Plaintiff, 

vs. 
,  Defendant. 


No. 


Before  ,  Justice  of  the  Peace  of 

,  said  County. 

38  Snyder,    6,441;    Wilson,    5,098;  Wells,     24     Kan.     277;     Penny     v. 

Kansas,    5,027     (1889);    Bnrdsal   v.  Richardson,    12    Okla.    256,   71    Pac. 

Shields,   79   Pac.   1,067;    Wallace  v.  227;  Ibid,  9  Okla.  655,  60  Pac.  501. 
Hall,    22    Kan.    194;    Templeton    v.  * 


585  FORCIBLE   ENTRY   AND   DETENTION.  §  826 

COMPLAINT  IN  FORCIBLE  ENTRY  AND  DETAINER. 

Comes  now ,  who,  being  first  duly  sworn,  on  oath,  says 

that is  the of,  and  entitled  to  the  immediate  pos- 
session of  the  following  described  premises,  situated  in  • 

County,  Oklahoma,  to- wit :    (Here  describe  premises.)      Affiant 

further  says  that  defendant  has  at  all  times  since  the day 

of ,  19 — ,  and  does  now,  unlawfully  and  forcibly  detain 

the  possession  of  said  premises  from  said  plaintiff. 

Wherefore,  plaintiff  prays  restitution  of  the  possession 
thereof,  and  judgment  against  said  defendant  for  costs. 


Sworn  to  and  subscribed  before  me  this day  of 

19—.  


Justice  of  the  Peace. 

Sec.  826.     Form  for  complaint  for  peaceable  entry  and  forcible, 
holding. 

State  of  Oklahoma, County,  ss. : 


,  Plaintiff, 

vs. 
,  Defendant. 


No. 


Before  ,  Justice  of  the  Peace  of 

Township,    County, 

State  of  Oklahoma. 

Personally  appeared  before  me,  the  undersigned, ,  who, 

being  by  me  duly  sworn,  deposes  and  says:  that  on  the  

(Jay  of  ,  19 — ,  he  was  in  the  possession  of  the  following 

described  real  estate,  situated  in  County,  State  of  Okla- 
homa, to-wit:  (Here  describe  premises  the  possession  of  which 
is  sought.) 

Affiant  further  says  that  on  the  day  of ,  19 — , 

said was  notified  in  writing  by  said  ,  as  required 

by  the  statute,  to  vacate  said  premises;  that  on  the day 

of  ,  19 — ,  and  ever  since,  said  defendant  has,  and  still 

does,  unlawfully  and  forcibly  detain  said  premises  from ; 

that  said was  then,  and  has  ever  since  been,  and  now  is, 

entitled  to  the  possession  of  said  premises. 


§  827  merwine's  trial  op  title  to  land.  586 

Wherefore,  this  afBant  prays  restitution  of  said  premises, 
and  judgment  for  the  costs  of  this  action. 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


Justice  of  the  Peace. 


Sec.  827.    Form  for  complaint  against  occupier  of  lands  with- 
out color  of  title. 


-,  Plaintiff, 


vs. 
,  Defendant. 


No. 


Before ,  Justice  of  the  Peace,  in 

and    for    ,    County, 

State  of  Oklahoma. 

State  of  Oklahoma, County,  ss. : 

Before  me,  the  undersigned  authority,  a  ,  in  and  for 

, County,  State  of  Oklahoma,  personally  appeared 

,  who,  being  by  me  first  duly  sworn,  deposes  and  says: 


that  on  the  day  of  ,  19 — ,  he  was  in  the  actual 

possession  of  the  lands  and  tenements  situated  in County, 

in  the  State  of  Oklahoma,  to-wit:  (Here  describe  premises  pos- 
session of  which  is  sought)  ;  that  on  the  day  of  , 

19 — ^ ^  without  any  color  of  title,  settled  and  located  upon 

and  occupied  the  aforesaid  real  estate;  that  on  the  day 

of  ,  19 — ,  said  notified  said  ,  by  notice  in 

writing,  as  required  by  statute,  to  vacate  said  real  estate;  that 

said  did,  on  said  day  of  ,  19 — ,  and  ever 

since  has,  and  still  does,  unlawfully  and  forcibly  detain  and  hold 

said  premises  from ,  and  that  said  was  then,  and 

has  ever  since  been,  and  still  is,  entitled  to  the  possession  of  said 
real  estate. 

Wherefore,  affiant  prays  judgment  for  the  possession  of  said 
real  estate  and  for  the  costs  of  this  action. 


587  FORCIBLE   ENTRY   AND    DETENTION.  §  828 

Subscribed  in  my  presence  and  sworn  to  before  me  this 

day  of ,  19 — .  , 


Justice  of  the  Peace. 


Sec.  828.     Another  form  for  complaint. 


,  Plaintiffs, 

vs. 
,  Defendants. 


Before  ,  Justice  of  the  Peace  in 

and  for County,  in  the  State 

of  Oklahoma. 

No.  . 


COMPLAINT  IN  FORCIBLE  ENTRY  AND  DETENTION. 

Come  now  the  said  and  ,  and,  for  their  com- 
plaint herein  against  said and ,  defendants,  allege : 

That  on  the day  of ,  19 — ,  they  were  entitled  to 

the  possession  of  the  following  described  real  estate,  in  

County,  State   of  Oklahoma,   to-wit:    (Here  describe  premises, 

possession   of  which  is  sought)  ;   that   on  said  day  of 

^  19 — ,  said  and  ,  defendants,  were  in  the 

unlawful  and  forcible  possession  of  said  tenements;  that  on  the 

day  of  ,  19 — ,  said  notified  said  , 

-,  in  writing,  to  quit  and  vacate  said  premises,  as  required 


by  law;  that  said  and  ,  on  said  day  of 

^  19 — ^  and  ever  since  have,  and  still  do,  unlawfully  and 

forcibly  detain  said  premises  from  them,  the  said  ;  that 

said  ,  ,  were,  on  the  said  day  of 

,  19 — ,  and  ever  since  have  been,  and  still  are,  entitled  to 

the  possession  of  said  lands  and  tenements. 

Wherefore,  plaintiffs   pray   that  they  may  have   judgment 

for  the  restitution  of  said  lands  above  herein  described,  and  for 

such  other  and  further  relief  as  the  nature  of  the  case  may 

require.  "' 

Attorney  for  Plaintiffs. 


§  829  MERWINE  'S   TRIAL   OF   TITLE   TO   LAND.  588 

State  of  Oklahoma, County,  ss. : 

,  being  first  duly  sworn,  says  that  he  is  one  of  the  plain- 
tiffs in  the  foregoing  action ;  that  he  has  read  the  above  and  fore- 
going petition,  and  that  the  facts  stated  and  allegations  contained 
therein  are  true.  . 

Subscribed  in  my  presence  and  sworn  to  before  me  this 

day  of ,  19 — .  , 


Justice  of  the  Peace. 

Sec.  829.    Form  for  summons  and  oflBcer's  return  of. 

State  of  Oklahoma, County,  ss. : 

SUMMONS. 

To ,  Constable  of Township, County,  Okla- 
homa: 

You  are  commanded  to  notify to  appear  at  my  office 

in  ,  County,   Oklahoma,  on   the   day  of 

^  19 — ^  at  o'clock,  —  m.,  to  answer  the  action  of 

• against  for  unlawful  and  forcible  entry  and  de- 
tention of  the  following  described  real  estate  in County, 

to-wit:  (Here  describe  real  estate  described  in  complaint),  and 
then  and  there  return  this  writ. 

Witness  my  hand  at  in  said  county  and  State  this 

day  of  ,  19—. 


Justice  of  the  Peace. 

OFFICER/ S    RETURN    OF    SUMMONS. 

I  received  this  writ  on  the  day  of  ,  19 — ,  at 

o'clock,  —  m.,  and  executed  the  same  in  my  county  of 

,  by  handincr  to  personally  a  true  copy  of  the 


within  summons  with  all  the  indorsements  thereon,  to 
on  the  day  of  ,  19 — . 


Constable. 


589  FORCIBLE   ENTRY    AND    DETENTION.  §§  830,  831 

Sec.  830.     Form  for  affidavit  for  continuance. 

State  of  Oklahoma, County,  ss. : 

Before ,  Justice  of  the  Peace  of 

,  said  County. 

,  Plaintiif, 

vs.  No. . 

,  Defendant. 


,  being  first  duly  sworn,  says  that  he  is  the  in 

the  above  entitled  cause;  that  said  cannot,  for  want  of 

material  testimony,  which  he  has  been  unable  to  procure,  safely 
proceed  to  trial. 

Wherefore,  he  asks  that  said  trial  be  adjourned  to  the 

day  of ,  19 — ,  at o'clock,  —  m. 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


Justice  of  the  Peace. 

Sec.  831.    Form  for  jury  venire  and  officer's  return  of. 

State  of  Oklahoma, County,  ss. : 

,  Plaintiff, 

vs.  No.  

,  Defendant. 


JURY    VENIRE. 

The  State  of  Oklahoma  to  the  Constalile  of  Township, 

Count]),  Greeting: 

You    are    hereby    commanded    to    summon    ,    , 


,  ,  and  ,  if  they  be  found  in  

County,  State  of  Oklahoma,  to  be  and  appear  before  , 

justice  of  the  peace  in  said  township  and  county,  on  the 

day  of  ,  19 — ,  at  the  hour  of  o'clock,  —  m.,  to 

serve  as  jurors  in  said  court,  and  have  you  then  and  there  the 
within  writ.     Hereof  fail  not  under  penalty  of  the  law. 

Witness  my  hand  and  official  seal  this day  of , 

19—.  , 

Justice  of  the  Peace. 


§§832,833  merwine's  trial  of  title  to  land.  590 

OFFICER'S  RETURN  OF  HIS  SERVICE  OF  SAID  WRIT. 

I   received  this  venire  on  the  day  of  ,   19 — , 

and  executed  the  same  in  my  county  by  delivering  a  true  copy 

thereof  to ,  ,  ,  ,  and  , 

all  on  the day  of ,  19 — . 


Constable. 


Sec.  832.     Form  for  verdict  for  plaintiflF. 


State  of  Oklahoma, County,  ss. : 

Before  ,  Justice  of  the  Peace  in 

and    for   Township,    

County,  Oklahoma. 


-,  Plaintiff, 


vs. 
,  Defendant. 


No. 


VERDICT. 

We,  the  jury  impaneled  and  sworn  in  the  above  entitled  cause, 


on  our  oaths  do  find 


Foreman. 


Sec.  833.     Form  for  verdict  for  defendant. 


State  of  Oklahoma, County,  ss. : 

Before  ,  Justice  of  the  Peace  in 

and    for   Township,    

County,  Oklahoma. 


-,  Plaintiff, 


vs. 
,  Defendant. 


No. 


VERDICT. 
We,  the  jury  impaneled  and  sworn  in  the  above  entitled  cause, 
on  our  oaths  do  find -• 


Foreman. 


591  FORCIBLE   ENTRY   AND   DETENTION.  §§  834,  835 

Sec.  834.     Form  for  judgment  on  the  verdict. 

State  of  Oklahoma, County,  ss. : 

Before ,  Justice  of  the  Peace  of 

Township,   said   County  and 


-,  Plaintiff, 


vs. 
,  Defendant. 


State. 

No. 


JUDGMENT  ON  THE  VERDICT. 

The  jury,  in  the  foregoing  action,  having  found  the  defendant 
guilty  as  charged  in  the  complaint  herein,  it  is  by  the  court 
ordered  that  the  plaintiff  have  immediate  possession  of  the  real 
estate  described  in  said  complaint,  wdth  his  costs,  herein  taxed 

at  $ .  , 

Justice  of  the  Peace. 

Sec.  835.     Form  for  writ  of  restitution. 

State  of  Oklahoma,  County,  ss. : 

The  State  of  Oldahoma  to  any  Constable  of  said  County: 

"Whereas,  in  a  certain  action  for  the  forcible  entry  and  de- 
tention  (or  for  the  forcible  detention,  as  the  case  may  be)   of 

the  following  described  premises,  to-wit : , 

lately  tried  before  me,  wherein was  plaintiff,  and 


was  defendant,  a  judgment  was  rendered  on  the  day  of 

■ ,  A.  D.  19 — ,  that  the  plaintiff  have  restitution  of  said 

premises;  also  that  he  recover  costs  in  the  sum  of  ;  you, 

therefore,  are  hereby  commanded  to  cause  the  defendant  to  be 
forthmth  removed  from  said  premises,  and  said  plaintiff  to  have 
restitution  of  the  same;  also  that  you  levy  of  the  goods  and 
chattels  of  said  defendant  to  make  the  costs  aforesaid,  and  all 
accruing  costs,  and  of  this  writ  make  legal  service  and  due 
return. 

Witness  my  hand  this day  of ,  A.  D.  19 — . 


Justice  of  the  Peace. 


CHAPTER   XIV. 

THE  LAW  AND  PROCEDURE  BY  WHICH  REAL  ESTATE 
IS  SOLD  BY  A  GUARDIAN. 


SECTION 

836.  The   nature   of    the    proceeding 

and  the  care  required  of 
counsel    in    conducting   same. 

837.  Court      proceedings,       records, 

orders  and  judgments  of 
county  courts  construed  to 
have  same  eflfect  as  those  in 
district  courts. 

838.  The   service   of   process   in   the 

county  court. 

839.  Conflict   of   State   and   Federal 

courts  as  to  guardian's  con- 
trol  of   real   estate. 

840.  Ward's     real     estate     may    be 

sold  for  the  paj'ment  of  his 
debts. 

841.  Guardian  may  sell   real  estate 

for  maintenance  and  support 
of  ward. 

842.  Guardian  may  sell  ward's  real 

estate  to  maintain  and  edu- 
cate   him. 

843.  Guardian   may  sell   real  estate 

for  investment,  when. 

844.  Application  of  the  proceeds  of 

such  sale — Investments — How 
made. 

845.  The    petition    for    the    sale    of 

real  estate  by  guardian. 

846.  Tlie   duties  of  the  court   as  to 

hearing  the  petition — Time 
and  place  of  hearing. 

847.  The     notice     to     the     parties, 

where  and  how  posted — The 
mailing  of   the   notices. 

848.  The  hearing  of  proofs  of  serv- 

ice and  publication  and  the 
examination  of  proofs  by  the 
court. 


854. 


855. 


SECTION 

849.  The     hearing    of    the    order — 

Guardian  and  witnesses  may 
be  examined. 

850.  The   order   as  to   costs  in   case 

of  objection  to  the  sale. 

851.  The   order   allowed — The   court 

must  specify  reasons  for  the 
sale — Sale   public   or   private. 

852.  The   guardian   must  give   bond 

before  the  sale. 

853.  The   guardian   to   comply   with 

the  statutes  created  appli- 
cable to  administrator's  and 
executor's  sales  of  real  estate. 

Proceedings  valid — EfTect  of 
omission  to  name  ward  in 
deed. 

The  statute  of  limitations  as 
to  order  of  sale. 

856.  The  terms  of  sale — Security  for 

purchase   price. 

857.  The     investment    of    the    pro- 

ceeds  of   sale. 

858.  The  procedure  where  the  guard- 

ian leases  his  ward's  lands 
for  oil  and  gas  mining  pur- 
poses. 

858a.  Summary  of  the  necessary 
steps  to  subject  lands  of  a 
minor  to  sale. 
The  procedure  by  which  a 
guardian  may  sell  real  estate 
of  his  ward — The  form  for 
the  petition. 
The  order  for  hearing  the  peti- 
tion to  sell  ward's  real  estate. 

861.  Form  for  tne  waiver  of  the 
statutory  notice  and  consent 
to  immediate  hearing. 


859. 


860. 


592 


593 


REAL   ESTATE   SOLD    BY    GUARDIAN. 


SECTION 

862.  Form  for  the  proof  of  posting 
the  notices. 

&63.  The  form  for  the  order  of 
sale  of  ward's  real  estate 
where  parties  waive  the  no- 
tice— Guardian  appointed  in 
one  county  and  real  estate 
situated   in  another. 

864.  Form  for  legal  notice  for  post- 

ing. 

865.  Form  for  proof  of  posting  legal 

notice. 

866.  Form  for  legal  notice  and  the 

proof  of  publication  of  same 
in  county  where  land  is 
located. 

867.  Form     for     legal     notice     and 

proof  of  publication  of  same 
in  county  where  guardian  re- 
sides  and  was   appointed. 

868.  Form    for    report    of    the    sale 

by  guardian. 

869.  Form    for    the    order    for    the 

hearing  of  the  guardian's 
report  and  return  of  sale  of 
real   estate. 

870.  Form  for  the  notice  of  hearing 

return  of  the  sale  and  proof 
of    posting   the   same. 

871.  Form    for    offer    of   more   than 

ten  per  cent,  of  the  amount 
bid  at  guardian's  sale  of 
ward's  real   estate. 

872.  Form  for  order  confirming  sale 

of  real  estate  to  party  bid- 
ding ten  per  cent,  more  than 
the  bid  at  public  auction. 

873.  Form   for    the    deed    from    the 

guardian  to  the  purchaser. 

874.  Procedure    by   which    guardian 

is  authorized  to  loan  funds 
of  ward — The  petition  there- 
for. 

875.  The  form  for   order   of  loan — 

The  appointment  of  ap- 
praisers. 

876.  The  form  for  the  oath   of  the 

appraisers. 

877.  The  form  for  the  report  of  the 

appraisers. 

878.  The  form  for  opinion  of  attor- 

neys as  to  title. 


SECTION 

879.  The  form  for  the  mortgage  to 

guardian. 

880.  The    form    for    the    report    of 

guardian  as  to  loan. 

881.  The    form    for    the    order    ap- 

proving and  confirming  loan. 

882.  Set  of  forms   for  the   appoint- 

ment of  a  guardian  and  for 
the  sale  of  real  estate  by 
guardian — The  form  for  selec- 
tion of  guardian  by  a  minor 
over  years  of  age. 

883.  Form  for  the  petition  for  the 

appointment  of  guardian. 

884.  Form  for  the  oath  to  the  peti- 

tion. 

885.  Form  for  the  order  appointing 

guardian. 

886.  Form  for  the  letters  of  guard- 

ianship. 

887.  Form  for  the  oath  of  guardian. 

888.  Form  for   the  guardian's  bond. 

889.  Form  for  the  oath  of  sureties. 

890.  Form    for    the    inventory    and 

appraisement. 

891.  Form  for  the  oath  of  guardian 

to  inventory  and  appraise- 
ment, 

892.  Form  for  the  order  appointing 

appraisers. 

893.  Form    for    certificate    of    true 

copy. 

894.  Form     for     the    oath     of     ap- 

praisers. 

895.  Form  for  the  certificate  of  ap- 

praisers. 

896.  Form  for  the  bill  of  appraisers. 

897.  Form     for     the     oath     of     ap- 

praisers to  said  bill. 

898.  Form  for   petition  to   sell  real 

estate  by  guardian. 

899.  Form  for  oath  to  petition. 

900.  Form    for    order    for    hearing 

petition  to  sell  real  estate  by 
guardian. 

901.  Form   for   waiver   of   notice  of 

hearing    petition    by   next    of 
kin  and  persons  interested. 

902.  Form   for    affidavit   of    posting 

copies  and  mailing  copies  to 
next  of  kin. 


§836 


merwine's  trial  of  title  to  land. 


594 


SECTION 

904.  Form  for  the  affidavit  of  publi- 

cation. 

905.  Form   for  the  order  appointing 

appraisers. 

907.  Form  for  the  decree  of  sale  of 

real   estate   by   guardian. 

908.  Form  for  notice  of  sale  of  real 

estate. 

909.  Form  for  the  affidavit  of  post- 

ing  notice. 

910.  Form  for  the  notice  of  sale  of 

real  estate  by  guardian. 

911.  Form    for    affidavit    of    posting 

notices. 

912.  Form  for  publication  of  notice 

of    sale   of    real    estate. 

913.  Form    for    the    proof    of   legal 

notice. 


SECTION 

914.  Form    for    the   legal    notice   of 

sale  of  real  estate  by  guard- 
ian. 

915.  Form    for   the   proof   of   publi- 

cation. 
91G.  Form   for   the   additional   bond 
of  guardian. 

917.  Form  for  the  oath  of  sureties. 

918.  Form  for  the  return  of  sale  of 

real   estate. 

919.  Form  for  oath  of  guardian  to 

return. 

920.  Form    for    order    for     hearing 

return  of  sale  of  real  estate. 

921.  Form  for  the  notice  of  hearing 

return  of  sale  of  real  estate. 

922.  Form    for    affidavit   of    posting 

notices  of  hearing  return. 

923.  Form  for  the  order  confirming 

sale  of  real  estate  by  guard- 
ian. 


Sec.  836.     The  nature  of  the  proceeding  and  the  care  required 
of  counsel  in  conducting  same. 

We  come  now  to  the  proceeding  for  the  sale  of  real  estate 
hy  a  guardian,  purely  statutory,  and  of  such  a  nature  as  to 
lead  counsel  who  may  be  conducting  the  proceeding,  to  think 
it  does  not  require  any  particular  care  and  attention.  This 
action  to  sell  the  real  estate  of  his  ward  by  a  guardian,  or 
of  a  decedent  by  an  executor  or  administrator,  to  pay  his 
debts,  or  to  satisfy  other  purposes  of  the  statute,  ought  to 
require  great  care,  deliberation  and  attention  at  the  hands 
of  those  whose  duty  it  is  to  care  for  such  estates.  Care- 
lessness upon  the  part  of  the  representatives  of  such  estates, 
and  upon  the  part  of  the  counsel  conducting  the  proceeding, 
and  also  by  our  courts  in  such  actions,  has  been,  and  is  now, 
the  source  of  many  defective  land  titles  in  this  State,  and 
is  now  and  has  been,  the  source  of  much  vexatious  and 
expensive  litigation.  Because  the  action  is  seldom  contested, 
the  petition  is  carelessly  prepared,  orders  are  asked  for  and 
given  without  investigation  by  the  courts,  parties  are  not 
properly  served  and  brought  into  the  case.     The  examiners 


595  REAL  ESTATE  SOLD  BY  GUARDIAN.  §  836 

of  real  estate  titles  in  this  State,  when  scrutinizing  title 
coming  through  an  executor,  administrator  or  guardian  in 
the  sale  of  real  estate,  knowing  how  careless  counsel  is  apt 
to  be  in  such  case,  should  scrutinize  the  proceedings  from  the 
filing  of  the  petition  to  the  deed  to  the  purchaser  with  the 
greatest  care.  Too  much  cannot  be  urged  upon  the  bench 
and  bar  of  this  State  to  attend  to  such  proceedings  with  the 
utmost  care. 

The  following  upon  this  topic  is  from  the  pen  of  an  emi- 
nent jurist  and  text-writer: 

"While  it  is  manifestly  the  policy  of  the  law  to  uphold 
judicial  sales  made  without  fraud,  there  is  no  need  to  deter 
purchasers  by  encouraging  the  apprehension  that  their  sub- 
stantial rights  and  interests  may  be  sacrificed  to  technical  con- 
siderations— while  courts  will  give  every  effect  to  insure  the 
protection  of  innocent  purchasers,  in  collateral  proceedings,  even 
in  eases  of  gross  error  arising  out  of  blunders  or  carelessness 
of  probate  courts  or  their  officers — it  is  apparently  of  the 
gravest  importance  that  every  step  taken  in  the  subjecting  of 
real  estate  to  sale  by  an  executor,  or  administrator,  or  a 
guardian,  be  as  nearly  as  possible  in  literal  compliance  with 
the  method  pointed  out  by  the  statute  upon  which  the  pro- 
ceeding is  based.  Where  particular  forms  are  appointed  for 
the  execution  of  a  power,  however  immaterial  they  may 
appear  in  themselves,  these  forms  are  conditions  that  cannot 
be  dispensed  with.  It  is  pernicious  error,  fruitful  of  trouble 
and  mischief,  to  suppose  that  any  vague,  unverified  statement 
of  circumstances  is  sufficient  to  authorize  a  sale  of  real  estate, 
if  the  applicant  and  the  judge  know  all  about  the  matter; 
or  that  the  good  faith  or  honesty  with  which  the  application 
is  made,  are  a  sufficient  safeguard  against  ruinous  complica- 
tions and  the  litigation  that  may  follow  oversight  or  mistake. 
The  anxiety  of  courts  to  vindicate  the  validity  of  judicial 
sales  should  not  be  relied  upon  as  a  pretext  for  the  care- 
lessness of  guardians,  executors  or  administrators,  or  the 
supineness  of  probate  courts,  in  the  several  steps  necessary 
for  the  sale  of  real  estate.    Even  if  the  sale  should  be  good 


§  837  MERWINE  'S   TRIAL    OF    TITLE   TO   LAND.  596 

as  against  collateral  attack — and  it  is  distressingly  uncertain 
as  to  what  extent  the  trial  and  even  appellate  courts  will  go 
in  this  direction — yet,  many  acts  of  commission  or  omission, 
which  will  not  be  allowed  to  invalidate  the  transaction  in  a 
collateral  investigation,  may,  in  a  direct  proceeding,  subject 
the  administrator,  executor  or  guardian  to  serious  liability, 
and  the  estate  to  loss  and  delay,  and  all  parties  concerned  to 
vexatious  and  ofttimes  ruinous  litigation.  No  part  of  the 
administrator,  executor  or  guardian's  duty  claims  more  care- 
ful attention  and  demands  more  imperatively  the  advice  and 
assistance  of  a  competent  professional  man,  than  his  rela- 
tions to,  and  duties  concerning,  the  real  estate  of  a  decedent, 
and  the  real  estate  of  minors,  and  incompetents."^ 

The  practitioner  should  always  bear  in  mind  that,  while  he 
is  conducting  a  proceeding  to  sell  real  estate  for  and  on 
behalf  of  a  guardian,  executor  or  administrator,  the  ultimate 
object  of  the  proceeding  is  to  convey  good  title  to  the  pur- 
chaser. 

Sec.  837.  Court  proceedings,  records,  orders  and  judgments 
of  county  courts  construed  to  have  same  effect 
as  those  in  district  courts. 

The  proceedings  of  the  county  courts  of  this  State  are  con- 
strued in  the  same  manner,  and  with  like  intendment,  as  the 
proceedings  of  courts  of  general  jurisdiction,  and  to  its 
records,  orders,  judgments  and  decrees,  there  are  accorded 
like  force,  effect  and  legal  presumption  as  to  records,  orders, 
judgments  and  decrees  of  district  courts.- 

1  Woerner  on  Administration,  Sec.  Ventrus    v.     Smith,     10    Pet.     161; 

1,021,   citing   Alabama   v.  Price,   42  Knox  v.  Jenks,  7  Mass.  488;   In  re 

Ala.    39;     Kelly's    Estate,     1     Abb.  Mahoner,    34    Hun,    501;    Lynch    v. 

New   Cases,    102;    Worthy   v.   John-  Hinkey,    13   111.    App.    139;    Wright 

son,  8  Ga.  236;   Finch  v.  Edmonson,  v.   Edwards,    10   Ore.   298;    Long  v. 

9   Tex.    504;    Frazier   v.   Stenrod,    7  Long,   142  N.  Y.  545. 
la.  339;  State  v.  Conover,  9  N.  J.  L.  2  Snyder,    5,137;     Wilson,     1,171; 

338;   Gross  v.  Howard,  52  Me.  192;  South  Dakota,  26    (1903);   Mattson 

Haywood  v.  HayAvood,  80  N.  C.  42;  v.   Swanson,  5   S.  D.   191,  58  N.  W. 

Monahan     v.     Van     Dyke,     27     111.  570;    Phillips  v.   Phillips,    13   S.   D. 

154;    Gilstrop    v.    Moore,    26    Miss.  231;   83  N.  W.  94. 
206;  Vance  v.  Moroney,  4  Cal.  47; 


597  BEAL  ESTATE  SOLD  BY  GUARDIAN.       §§  838,  839 

In  the  sale  of  the  land  of  minors  upon  the  application  of  a 
guardian,  it  is  competent  for  the  probate  court  to  determine 
from  the  evidence  submitted  whether  due  and  legal  notice 
has  been  given  to  the  minor.* 

Sec.  838.     The  service  of  process  in  the  county  court. 

All  process  issued  by  the  county  court  must  be  served  in  the 
same  manner  and  by  the  persons  and  officers  as  provided 
for  the  service  of  process  in  the  district  court;  and  with  the 
same  fees.^ 

Sec.  839.     Conflict  of  State  and  Federal  courts  as  to  guard- 
ian's control  of  real  estate. 

There  was  a  State  law  providing  that  a  minor,  if  mar- 
ried, might  sell  and  convey  his  real  estate,*  and  there  was 
and  is  now,  a  Federal  law  to  the  effect  that  the  county  court 
shall  have  control  of  the  allotted  lands  of  the  freedman  and 
Indian  until  he  becomes  of  the  age  of  twenty-one  and  eighteen 
years,  respectively.  The  language  of  that  act  is,  that  "the 
term  'minor'  or  'minors,'  as  used  in  this  act,  shall  include  all 
males  under  the  age  of  twenty-one  years  and  all  females 
under  the  age  of  eighteen  years."  ^ 

The  State  statute  authorizing  a  married  minor  to  convey 
his  real  estate,  even  if  not  of  age,  does  not  apply  to  the  lands 
of  freedmen  and  Indians,  which  have  been  allotted  to  them 
by  the  Government.  The  lands  of  all  other  minors,  not  sub- 
ject to  Federal  control  are  reached  by  this  State  law.  Hence, 
the  allotted  lands  of  the  freedman  and  Indian  from  which 
the  restrictions  have  been  removed  can  be  sold  by  proper 
procedure  and  orders  of  sale  in  the  county  courts  of  this 
State.« 

*  Bradford    v.    Larkin,    57    Kan.  s  Section  2  of  tlie  Act  of  May  27, 

90,  45  Pac.  69.  1908. 

3  Snyder,  5,138;  Wilson,  1,172;  6  Jefferson  v.  Winlder,  20  Okla. 
Dakota  Code,  5,662    (1887).  653,  110  Pac.  755. 

4  Snyder,  1,184;  Act  of  March  12, 
1897. 


§§840,841        MER wine's  trial  op  title  to  land,  598 

Again,  the  State  law  provides  that  the  marriage  of  a  minor 
terminates  the  guardianship,  but  this  applies  only  to  persons 
who  do  not  have  lands  allotted  them  by  the  Government. 
For  the  marriage  of  a  minor  freedman  or  Indian,  to  whom 
lands  have  been  allotted  by  the  Government,  does  not,  of 
itself,  terminate  the  guardianship  as  to  his  allotment,  nor 
abate  the  jurisdiction  of  the  county  court,  and  the  guardian 
under  such  jurisdiction  has  authority  to  make  a  sale  of  such 
minor's  allotted  lands.'^ 

Sec.  840.  Ward's  real  estate  may  be  sold  for  the  payment 
of  his  debts. 
Every  guardian  appointed  under  the  provisions  of  this 
chapter,  whether  for  a  minor  or  any  other  person,  must  pay 
all  just  debts  due  from  the  ward  out  of  his  personal  estate 
and  income  of  his  real  estate,  if  sufficient;  if  not,  then  out 
of  his  real  estate,  upon  obtaining  an  order  for  the  sale  thereof, 
and  disposing  of  the  same  in  the  manner  provided  by  law  for 
the  sale  of  real  estate  of  decedents.* 

Sec.  841.     Guardian  may  sell  real  estate  for  maintenance  and 
support  of  his  ward. 

Every  guardian  must  manage  the  estate  of  his  ward 
frugally  and  without  waste,  and  apply  the  income  and 
profits  thereof,  as  far  as  may  be  necessary,  for  the  com- 
fortable and  suitable  maintenance  and  support  of  the  ward, 
and  his  family,  if  there  be  any;  and  if  such  income  and 
profits  be  insufficient  for  that  purpose,  the  guardian  may 
sell  the  real  estate,  upon  obtaining  an  order  of  the  county 
court  therefor,  as  provided,  and  must  apply  the  proceeds  of 
such  sale,  as  far  as  may  be  necessary,  for  the  maintenance 
and  support  of  the  ward  and  his  family,  if  there  be  any.« 

7  Kirkpatrick  V.  Burgess,  29  Okla.  9  Snyder,  5,491;  Wilson,  1,833; 
121,  11(5  Pac.  764.  Dakota    Code,    6.002     (1887);    Cali- 

8  Snyder,     5,489;     Wilson,     1,831;  fornia,  1,770   (Kerr),  similar. 
California,    1,768     (Kerr),    similar. 


599  REAL   ESTATE   SOLD    BY    GUARDIAN.  §§  842-844 

Sec.  842.  Guardian  may  sell  ward's  real  estate  to  maintain 
and  educate  ward. 
When  the  income  of  an  estate  under  guardianship  is  insuffi- 
cient to  maintain  the  ward  and  his  family,  or  to  maintain 
and  educate  the  ward  when  a  minor,  his  guardian  may  sell 
his  real  or  personal  estate  for  that  purpose,  upon  obtaining 
an  order  therefor.^" 


Sec.  843.     Guardian  may  sell  real  estate  for  investment,  when. 

When  it  appears  to  the  satisfaction  of  the  court,  upon  the 
petition  of  the  guardian,  that  for  the  benefit  of  his  ward,  his 
real  estate,  or  some  part  thereof,  should  be  sold,  and  the 
proceeds  thereof  put  out  at  interest,  or  invested  in  some 
productive  stock,  or  in  the  improvement  or  security  of  any 
other  real  estate  of  the  ward,  his  guardian  may  sell  the  same 
for  such  purpose,  on  obtaining  an  offer  therefor.^^ 


Sec.  844.     Application  of  the  proceeds  of  such  sale — Invest- 
ments— How  made. 

If  the  estate  is  sold  for  the  purposes  mentioned  in  the  two 
paragraphs  preceding,  the  guardian  must  apply  the  proceeds  of 
such  sale  to  such  purposes,  as  far  as  necessary,  and  put  out 
the  residue,  if  any,  on  interest,  or  invest  it  in  the  best  manner 
in  his  power,  until  the  capital  is  wanted  for  the  maintenance  of 
the  ward  and  his  family,  or  the  education  of  his  children,  or 
for  the  education  of  the  ward  when  a  minor,  in  which  case  the 
capital  may  be  used  for  that  purpose,  as  far  as  may  be  neces- 
sary, in  like  manner  as  if  it  had  been  personal  estate  of  the 
ward. 


10  Snyder,    5,498;    Wilson,    1,840;  99,  64  Pac.  133;  Smith  v.  Biscailiez, 

Dakota    Code,    6,009     (1887);    Cali-  21  Pac.  15. 

fornia,  1,777    (Kerr) ,  similar ;  Fitch  n  Snyder,    5,499;    Wilson,    1,841; 

V.   Miller,    20   €al.    352;    Estate    of  Dakota  Code,  7,610    (1887). 
Livermore,   132  Cal.  99,  84  Am.  St. 


§§845,846        MER wine's  trial  of  title  to  land.  600 

If  the  estate  be  sold  for  the  purpose  of  putting  out  or 
investing  the  proceeds,  the  guardian  must  make  the  invest- 
ment according  to  his  best  judgment,  or  in  pursuance  of 
any  order  that  may  be  made  by  the  county  court.^^ 

Sec.  845.     The  petition  for  the  sale  of  real  estate  by  guardian. 

To  obtain  an  order  for  such  sale,  the  guardian  must  pre- 
sent to  the  county  court  of  the  county  in  which  he  was 
appointed  guardian,  a  verified  petition  therefor,  setting  forth 
the  condition  of  the  estate  of  his  ward,  and  the  facts  and 
circumstances  upon  which  the  petition  is  founded,  tending 
to  show  the  necessity  or  expediency  of  a  sale/^ 

This  petition,  as  in  other  civil  matters,  in  order  to  give 
the  court  power  to  make  an  order  for  the  sale  of  the  real 
estate,  must  contain  the  essential  averments  of  the  statute 
authorizing  such  sale.^^ 

Sec.  846.  The  duties  of  the  court  as  to  hearing  the  petition — 
Time  and  place  of  hearing. 
If  it  appear  to  the  court  or  judge,  from  the  petition,  that 
it  is  necessary  or  would  be  beneficial  to  the  ward  that  the 
real  estate,  or  some  part  of  it,  should  be  sold,  or  that  the 
real  and  personal  estate  should  be  sold,  the  court  or  judge 
must  thereupon  make  an  order  directing  the  next  of  kin 
of  the  ward,  and  all  persons  interested  in  the  estate,  to 
appear  before  the  court,  at  a  time  and  place  therein  specified, 
not  less  than  four  nor  more  than  eight  weeks  from  the  time 
of  making  such  order,  to  show  cause  why  an  order  should 
not  be  granted  for  the  sale  of  such  real  estate.  If  it  appear 
that  it  is  necessary  or  would  be  beneficial  to  the  ward  to  sell 
the  personal  estate,  or  some  part  of  it,  the  court  must  order 
the  sale  to  be  made.^^ 

12  Snyder,   5,500   and   5,501;    Wil-  is  Snyder,    5,502;    Wilson,    1,844; 

son,   1,842  and  1,843;   Dakota  Code,       Dakota    Code,    6,013     (1887);    Cali- 
6,011  and  0,012    (1887);   California,       fornia,    1,781    (Kerr),   similar. 
1,780     (Kerr),    similar;     Guardian-  i^  Fitch  v.  Miller,   20  Cal.  352. 

ship  of  Cardwell,  48  Cal.   137.  is  Snyder,    5,503;    Wilson,    1,845; 

Dakota  Code,   6,014    (1887). 


601  REAL  ESTATE  SOLD  BY  GUARDIAN.        §§  847-849' 

Sec.  847.  The  notice  to  the  parties — ^Where  and  how  posted — 
The  mailing  of  the  notices. 
The  comity  judge  is  required  to  cause  copies  of  such  order 
to  be  posted  up  in  three  public  places  in  the  county,  one  of 
which  must  be  at  the  courthouse  where  said  hearing  is  to  be 
held,  and  personally  served  on  or  mailed  to  the  next  of  kin 
of  the  ward,  and  all  persons  interested  in  the  estate  of  said 
ward,  residing  in  the  county,  and  to  be  mailed  to  all  persons 
who  are  not  residents  of  the  county,  with  postage  prepaid, 
at  least  fourteen  days  before  the  hearing  of  the  petition. 
If  the  postoffice  of  any  such  person  is  unknown,  a  copy  of  the 
order  must  be  published  for  two  successive  weeks  in  some 
newspaper  published  in  the  county,  and  the  hearing  of  said 
petition  shall  not  be  less  than  fourteen  days  from  the  date 
of  the  first  publication  of  such  notice.  Provided,  if  written 
consent  to  making  the  order  of  sale  is  subscribed  by  all 
persons  interested  therein  and  the  next  of  kin,  said  order  of 
sale  may  be  made  at  once,  and  without  giving  the  notice  pro- 
vided for  in  this  act.^® 

Sec.  848.    The  hearing  of  proofs  of  service  and  publication 
and  the  examination  of  proofs  by  court. 

The  county  court,  at  the  time  and  place  appointed  in  the 
order,  or  at  such  other  time  to  which  the  hearing  is  post- 
poned, upon  proof  of  the  service  or  publication  of  the  order, 
must  hear  and  examine  the  proofs  and  allegations  of  the 
petitioner  and  of  the  next  of  kin,  and  of  all  other  persons 
interested  in  the  estate  who  oppose  the  application.^^ 

Sec.  849.    The  hearing  of  the  order— Guardian  and  witnesses 
may  be  examined. 
On  the  hearing  the  guardian  may  be   examined   on  oath, 
and  witnesses  may  be  produced  and  examined  by  either  party. 

Act   approved   March   17,    1910,  it  Snyder,    5,505;    Wilson,    1,848; 

Sec.    10,    Chap.    65,    S.    L.     (Okla.)        Dakota   Code,   6,018    (1887). 
1910. 


§§850-852         merwine's  trial  of  title  to  land.  602 

and  process  to  compel  their  attendance  and  testimony  may  be 
issued  by  the  county  court  or  judge,  in  the  same  manner  and 
with  like  effect  as  in  cases  provided  for  in  the  settlement  of 
estates  of  decedents/* 

Sec.  850.    The  order  as  to  costs  in  case  of  objection  to  the 
sale. 

If  any  person  appears  and  objects  to  the  granting  of  any 
order  prayed  for  under  the  provisions  of  this  chapter,  and  it 
appears  to  the  court  that  either  the  petition  or  objection 
thereto  is  sustained,  the  court  may,  in  granting  or  refusing 
the  order,  award  costs  to  the  party  prevailing  and  enforce 
the  payment  thereof.^^ 

Sec.  851.    The  order  allowed — The  court  must  specify  reasons 
for  the  sale — Sale  public  or  private. 

If,  after  a  full  examination,  it  appears  necessary,  or  for 
the  benefit  of  the  ward,  that  his  real  estate,  or  some  part 
thereof,  should  be  sold,  the  court  may  grant  an  order  therefor, 
specifying  therein  the  causes  or  reasons  why  the  sale  is  neces- 
sary or  beneficial,  and  may,  if  the  same  has  been  prayed  for 
in  the  petition,  order  such  sale  to  be  made,  either  at  public  or 
private  sale."" 

Sec.  852.    The  gnardian  must  give  bond  before  the  sale. 

Every  guardian  authorized  to  sell  real  estate,  must,  before 
the  sale,  give  bond  to  the  county  judge,  with  sufficient  surety 
to  be  approved  by  him,  with  condition  to  sell  the  same  in  the 
manner  and  to  account  for  the  proceeds  of  the  sale  as  pro- 
vided for  in  this  chapter  and  by  the  statutes  of  this  State." 


18  Snyder,    5,506;  Wilson,  1,848;            21  Snyder,    5,509;    Wilson,    1,851; 

Dakota  Code,  6.018  (1887).  Dakota    Code,    6,020    (1887);    Cali- 

isSnyder,    5,507;  Wilann,  1,849;       fornia,  1,788  (Kerr) ,  similar;  Smith 

Dakota  Code,   6,018  (  1887).  v.  Biscailuz,  84  Cal.  344,  21  Pac.  15. 

20  Snyder,    5,508;  Wilson,  1,850; 
Dakota    Code,    6,019     (1887).      See 

Section  .  * 


603  REAL.  ESTATE  SOLD  BY  GUARDIAN.        §§  853,  854 

Sec.  853.  The  guardian  to  comply  with  the  statutes  created 
applicable  to  administrator's  and  executor's  sales 
of  real  estate. 

All  proceedings  under  petition  of  guardians  for  sales  of 
property  of  their  wards,  giving  notice  and  hearing  of  such 
petitions,  granting  and  refusing  an  order  of  sale,  directing 
the  sale  to  be  made  at  public  or  private  sale,  reselling  the 
same  property,  return  of  sale  and  application  for  confirma- 
tion thereof,  notice  and  hearing  of  such  application,  making 
orders,  rejecting  or  confirming  sales  and  reports  of  sales, 
ordering  and  making  conveyances  of  the  property  sold, 
accounting  and  the  settlement  of  accounts  must  be  had  and 
made  as  provided  and  required  by  the  provisions  of  law 
concerning  the  estates  of  decedents  unless  otherwise  specially 
pro"\dded  in  this  chapter.-^ 

Sec.  854.  The  proceedings  valid — Omission  to  name  ward  in 
deed. 

It  has  been  held  that  a  collateral  attack  upon  a  judicial 
proceeding  in  a  probate  court,  under  which  a  sale  of  land  was 
made  by  a  guardian  more  than  fifteen  years  before,  will  not 
be  favored.  While  a  sale  of  land  was  made  by  a  guardian 
for  the  actual  value  of  the  same,  the  sale  approved,  the  money 
paid  and  expended  for  the  support  and  education  of  the 
minors,  and  the  purchaser  takes  possession  thereunder,  and 
holds  the  same  for  a  long  time,  he  acquired  the  full  equitable 
title,  and  is  entitled  to  a  conveyance  of  the  legal  title;  and 
the  mere  fact  that  a  deed  which  contains  a  full  recital  of 
the  preliminary  proceedings,  omits  the  names  of  one  of  the 
minors,  will  not  invalidate  the  sale  and  in  case  the  purchaser 
or  his  grantee  is  entitled  to  have  estate,  interest  and  pos- 
session of  the  land  quieted,  as  against  the  claims  of  any  of  the 
minors.* 


22  Snyder,    5,510;    Wilson,    1,852;  *  Bradford    v.    Larkin,     57    Kan. 

Dakota    Code,    6,021     (1887);    Call-       90,  45  Pac.  69. 
fornia,   1,789    (Kerr),  identical. 


§§855-858         merwine's  trial,  of  title  to  land.  604 

Sec.  855.    The  statute  of  limitation  as  to  order  of  sale. 

No  order  of  sale  granted  in  pursuance  of  this  cliapter, 
continues  in  force  more  than  one  year  after  granting  the 
same,  without  a  sale  being  had.-^ 

Sec.  856.    The  terms  of  sale — Security  for  purchase  price. 

All  sales  of  real  estate  of  wards  must  be  for  cash,  or  part 
cash,  and  part  deferred  payments,  not  to  exceed  three  years, 
bearing  interest  from  date  of  sale,  as,  in  the  discretion  of  the 
county  judge,  is  most  beneficial  to  the  ward.  Guardians 
making  sales  must  demand  and  receive  from  the  purchaser,  a 
bond  and  mortgage  on  the  real  estate  sold,  with  such  addi- 
tional security  as  the  judge  deems  necessary  and  sufficient 
to  secure  the  faithful  payment  of  the  deferred  payments  and 
the  interest  thereon."* 

Sec.  857.     The  investment  of  the  proceeds  of  sale. 

The  county  court,  on  the  application  of  the  guardian,  or 
any  person  interested  in  the  estate  of  any  ward,  after  such 
notice  to  persons  interested  therein  as  the  judge  shall  direct, 
may  authorize  and  require  the  guardian  to  invest  the  pro- 
ceeds of  sales,  and  any  other  of  his  ward's  money  in  his 
hands,  in  real  estate,  or  in  any  other  manner  most  to  the 
interest  of  all  concerned  therein;  and  the  county  court  may 
make  such  other  orders  and  give  such  directions  as  are  needful 
for  the  management,  investment  and  disposition  of  the  estate 
and  effects  as  circumstances  require.-^ 

Sec.  858.     The  procedure  where  the  guardian  leases  his  ward's 
lands  for  oil  and  gas  mining  purposes. 
Under  the  chapter  as  to  the  procedure  and  law  as  to  oil 
and  gas  mining  leases  will  be  found  a  full  set  of  forms  by 

23  Snyder,  5,511;  Wilson,  1,853;  25  Snyder,  5,513;  Wilson,  1.855; 
Dakota    Code,   6.022    (1887).                    Dakota    Code,    6,024    (1887);    Cali- 

24  Snyder,    5,512;    Wilson,    1,854;       fornia,  1,792    (Kerr),  identical. 
Dakota    Code,    6,023     (1887);    Cali- 
fornia, 1,791    (Kerr),  identical. 


605  REAL,  ESTATE  SOLD  BY  GUABDIAN.  §  858a 

which  the  guardian  may  lease  his  ward's  lands  for  oil  and 
gas  mining  purposes. 

Sec.  858a.    Summary  of  the  necessary  steps  to  subject  lands  of 
a  minor  to  sale. 

Mr.  Bledsoe,  in  his  valuable  work,  has  given  us  the  fol- 
lowing useful  summary  of  the  steps  necessary  in  the  sale  of 
the  land  of  a  minor  in  this  State: 

To  avoid  overlooking  a  compliance  with  any  of  the  statu- 
tory provisions  authorizing  or  regulating  the  sale  of  real 
estate  of  a  minor  by  order  of  a  county  court,  it  is  perhaps 
advisable  to  enumerate  the  various  steps  required  to  be 
taken  in  the  order  fixed  in  the  statute.  The  following  action 
should  be  taken  and  the  following  proceedings  be  had: 

1.  There  should  be  filed  a  petition  for  an  order  of  sale. 

2.  A  hearing  should  be  had,  an  order  procured,  directing 
the  next  of  kin  of  the  minor  and  all  persons  interested  in 
the  land  to  appear  and  show  cause  yvhy  the  order  should 
not  be  granted  as  prayed  for. 

3.  There  should  be  service  of  the  order  to  show  cause  as 
required  by  the  statute. 

4.  Proof  of  service  of  the  notice  of  application  for  the 
order  to  sell  should  be  made  by  affidavit,  filed  on  or  before 
the  day  on  which  the  hearing  is  to  be  had. 

5.  There  should  be  a  full  and  complete  hearing  on  the 
petition  for  the  order  to  sell. 

6.  An  order  of  sale  should  be  entered,  complying  with  the 
statutory  provisions. 

7.  A  special  bond  should  be  filed  and  approved  in  such 
sum  as  may  be  ordered  by  the  court. 

8.  Notice  of  the  sale  of  real  estate  should  be  given  as 
required  by  statute. 

9.  Proof  of  the  giving  of  the  notices  as  required  by  the 
statute  to  be  filed  with  the  return  of  the  sale. 


§  858a  MERWINE  'S   TRIAL   OF    TITLE   TO   LAND.  606 

10.  The  sale  should  be  made  at  the  time  and  place  pre- 
scribed in  the  order  and  of  which  notice  is  given,  and  if 
there  is  a  postponement  of  the  sale,  notice  of  such  postpone- 
ment should  be  given  as  required  by  the  statute. 

11.  A  return  should  be  made  of  the  sale  on  or  before  the 
first  day  of  the  next  term  of  the  court,  succeeding  the  day 
on  which  the  sale  is  made. 

12.  Hearing  should  be  had  upon  such  return,  and  if  such 
hearing  is  on  the  first  day  of  the  succeeding  term,  no  notice 
is  necessary. 

13.  If  the  hearing  on  the  return  be  not  had  upon  the  first 
day  of  the  next  succeeding  term,  an  order  should  be  entered 
fixing  the  date  of  such  hearing  and  requiring  notice  to  be 
given  thereof. 

14.  Notice  should  be  given  as  required  by  the  statute  of 
the  hearing  on  the  return. 

15.  Proof  of  the  service  of  the  notice  should  be  procured 
and  filed  prior  to  the  day  of  the  hearing. 

16.  An  order  of  confirmation  should  be  duly  entered  and 
the  same  should  find  in  said  order  a  compliance  with  all  the 
statutory  provisions  authorizing  the  sale  of  the  real  estate 
of  a  minor,  and  regulating  the  proceedings  thereon. 

17.  The  order  of  confirmation  should  be  recorded  as  re- 
quired by  statute. 

18.  A  deed  should  be  executed  by  the  guardian,  conveying 
the  interest  of  the  minor  to  the  purchaser  at  the  sale. 

19.  If  a  private  sale  is  desired,  the  following  additional 
statutory  provisions  should  be  complied  with : 

(a)  The  petition  must  pray  an  order  authorizing  a  private 
sale. 

(&)    The  order  must  authorize  a  private  sale. 

(c)  There  must  be  an  appraisement  of  the  real  estate  or- 
dered sold. 

(d)  Notice  must  be  given  of  the  sale  as  required  by  statute. 

(e)  There  must  be  proof  of  service  of  the  notice  as  re- 
quired by  the  statute,  before  the  sale  is  presented  for  con- 
firmation. * 


607  REAL,  ESTATE  SOLD  BY  GUARDIAN.  §  859 

(/)  Confirmation  cannot  be  had  unless  ninety  per  cent,  of 
the  value  is  realized.* 

Sec.  859.     The  procedure  by  which  a  guardian  may  sell  real 
estate  of  his  ward — The  form  for  the  petition. 

In  the  County  Court  op County,  State  of  Oklahoma. 

In  the  Matter  of  the  Guardianship 

of ,  a  ]\Iinor.  No.  . 

PETITION  TO  SELL  REAL  ESTATE  BY  GUARDIAN. 

Comes  now  ,  as  the  ^ardian  of  ,  and  shows  to 

the  court  the  condition  of  the  estate  of  the  above  named  ward, 
to-wit : 

The  personal  property  of  said  ward  consists  of  ,  of  ap- 
proximate value  of  $ ;  that  the  annual  income  therefrom 

is  approximately  $ . 

That  said  ward  owns  the  following  described  real  estate  of  the 
approximate  value  of  $ ,  to-wit:  (Here  describe  real  es- 
tate) ;    that    the    annual    income    therefrom    is    approximately 

$ ;  that  said  real  estate  is  incumbered  to  the  amount  of 

$ ,  with  an  annual  interest  charge  of  $ — ■ ;  that  the 

annual  expense  chargeable  against  the  estate  of  said  ward  for 

maintenance  and  education  is  approximately  $ ;  that  it 

is  necessary,  or  to  the  best  interest  of  the  ward,  that  the  herein- 
after described  portion  of  said  real  estate  be  sold  for  the  fol- 
lowing reasons,  to-wit:  (Here  state  them.) 

That  the  next  of  kin  and  all  persons  interested  in  the  estate  of 
said  ward,  together  with  their  respective  places  of  residence,  are 
as  follows:  (Here  set  them  out.) 

Wherefore,  petitioner  prays  the  court  that  upon  hearing  had 
hereon,  he  be  authorized  to  sell  all  the  interest  of  the  minor  in 
and  to  the  (Here  describe  the  real  estate  sought  to  be  sold)   of 

•  Indian    Land    Laws,    Sec.     190.    The  recent  changes  in  legislation  as 
herein  noted  should  be  observed. 


§  860  merwine's  trial  of  title  to  land.  608 

said  real  estate,  at  public  or  private  sale,  as  shall  be  deemed 
most  beneficial  and  for  the  best  interest  of  said  ward. 


State  of  Oklahoma, County,  ss. : 

,  petitioner  above  named,  being  duly  sworn,  says  that 

he  has  read  the  foregoing  petition  and  knows  the  contents 
thereof,  and  the  same  is  true  of  his  own  knowledge  and  belief, 
except  the  matters  therein  stated  to  be  on  information  and 
belief,  and  as  to  these  matters  he  believes  them  to  be  true. 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


[Seal.]  Notary  Public. 

My  commission  expires . 

Sec.  860.    The  order  for  hearing  the  petition  to  sell  ward's 
real  estate. 

In  the  County  Court  op County,  State  op  Oklahoma. 

In  the  Matter  of  the  Estate 


01 


f ,  a  I\Tinor.  No. 


ORDER  FOR  HEARING  PETITION  TO  SELL  REAL 

ESTATE. 

Now,  on  this day  of ,  19—  having  filed 

herein  his  petition  for  the  sale  of  the  real  estate  described  in 
said  petition,  for  reasons  in  said  petition  stated. 

It  is  ordered  that  said  petition  be,  and  hereby  is,  set  for  hear- 
ing on  the day  of ,  A.  D.  19—,  at o'clock, 

—  m.,  at  which  time  the  next  of  kin  of  the  ward  and  all  persons 
interested  in  the  estate  are  required  to  appear  before  the  court 
and  show  cause,  if  any  they  have,  why  an  order  should  not  be 

granted  for  the  sale  of  so  much  of  the  real  estate  of  said ■ 

as  is  necessary  or  beneficial  for  the  reasons  in  said  petition  stated. 

It  is  further  ordered  that  copies  of  this  order  be  posted  in 
three  public  places  in  this  county,  one  of  which  shall  be  at  the 
courthouse  and  personally  served  on  or  mailed  with  the  postage 


609  REAL  ESTATE  SOLD  BY  GUARDIAN.       §§  861,  862 

prepaid  to  the  next  of  kin  of  the  ward  and  all  persons  interested 
in  the  estate  of  said  ward,  and  that  a  copy  of  this  order  be 

published  for  two  successive  weeks   in   the  of  

County,  Oklahoma. , 

Judge  of  the  County  Court. 


Sec.  861.    Form  for  the  waiver  of  the  statutory  notice  and 
consent  to  immediate  hearing-. 

In  the  County  Court  of County,  State  of  Oklahoma. 

In  the  Matter  of  the  Estate 

of ,  a  I\rinor.  No. . 

We,  the  undersigned  parties  in  interest  in  the  above  entitled 
estate,  and  the  next  of  kin  to  the  ward,  hereby  waive  notice  of 
hearing  petition  to  sell  the  following  real  estate  in  said  estate, 
to-wit:  (Here  describe  real  estate),  and  consent  that  said  hearing 
be  had  without  notice  to  us  and  that  the  said  court  make  said 
order  of  sale  forthwith. 

Witness  our  hands  this day  of ,  19 — . 


Sec.  862.     Form  for  proof  of  posting  and  mailing  the  notices. 

State  of  Oklahoma,  County  of  Okmulgee,  ss. : 

,  of  lawful  age,  being  first  duly  sworn,  upon  his  oath, 

says  that  on  the day  of ,  19 — ,  he  personally  served 

true  copies  of  the  within  notice  upon  the   follo-\ving  persons, 

to-wit :  , ,  and ,  they  being  the  next 

of  kin  and  all  persons  interested  in  the  estate  of  said  ward,  by 
mailing  a  copy  thereof,  with  postage  prepaid,  addressed  at  their 
usual  postofifice  address,  and  by  posting  true  copies  of  the  same 
in  three  public  places  in  the  county,  one  at  the  courthouse  where 


§  863  merwine's  trial  of  title  to  land,  610 

the  hearing  is  to  be  held,  one  at and  one  at ,  all  in 

County,  Oklahoma. 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


Clerk  of  the  County  Court. 


Sec.  863.  The  form  for  the  order  of  sale  of  ward's  real  estate 
where  parties  waive  the  notice — Guardian  ap- 
pointed in  one  county  and  real  estate  situated  in 
another. 

In  the  County  Court  of County,  State  of  Oklahoma. 

In  the  ]\Iatter  of  the  Guardianship 

of ,  a  ]\Iinor.  No.  . 

DECREE  FOR  SALE  OF  REAL  ESTATE  BY  GUARDIAN. 

Now,  on  this day  of ,  19 — ,  there  coming  on  for 

hearing  the  petition  of  ,  as  the  guardian  of  ,  a 

minor,  for  an  order  authorizing  the  sale  of  certain  real  estate 
described  in  the  petition,  and  said  petitioner  appearing  in  per- 
son and  by  his  counsel,  and  it  being  proven  to  the  satisfaction 
of  the  court  upon  the  hearing  thereof,  that  all  persons  interested 

in  said  real  estate,  and  the  next  of  kin  of  said  ,  having, 

by  an  instrument  in  writing  filed  herein,  joined  in  the  prayer  of 
said  petition,  and  consented  that  the  real  estate  described  below 
be  sold,  and  that  the  court  proceed  thereupon  to  hear  and  de- 
termine the  prayer  of  said  petition,  and  that  said  and 

,  who  signed  said  request,  are  the  and  , 

respectively,  of  said  minor,  and  are  the  only  next  of  kin  and  all 
persons  interested  in  the  estate  of  said  minor,  and  said  matter 
being  submitted  to  the  court,  and  upon  due  examination  and 
consideration  of  said  petition  and  after  a  full  hearing  upon  the 
same,  and  upon  the  consideration  of  the  proof  offered  upon  said 
matter,  the  court  finds  that  the  sale  of  the  real  estate  belonging 
to  said  ward  mentioned  in  said  petition  and  hereinafter  de- 
scribed, is  necessary  for  the  purpose  of   (Here  set  it  out),  and 


611  REAL  ESTATE  SOLD  BY  GUAEDIAN.  §  864 

for  the  further  purpose  of  (Here  insert  it),  and  all  for  the 
best  interest  of  said  ward. 

It  is  Therefore  adjudged  and  decreed  by  the  court  that  the 

said ,  as  guardian  of  the  estate  of  said  ward,  be,  and  he 

is,  hereb}^  authorized  and  directed  to  sell  to  the  highest  bidder, 
at  public  auction,  the  following  described  real  estate  of  said 
ward,  situated  in  ,  State  of  Oklahoma,  to-wit:  (Here  de- 
scribe it),  on  the  following  terms,  to-wit:  Cash  in  hand  upon 
the  confirmation  of  said  sale. 

It  is  further  ordered  that  notice  of  the  time  and  place  of 

such  sale  be  given  by  publication  for successive  

in  the  ,  of County,  Oklahoma,  and  in ,  of 

County,  Oklahoma,  and  by  posting  notices  as  required 

by  lav;. 

It  is  further  ordered  that  before  making  such  sale  said  guard- 
ian  execute  an  additional  bond  to  the   county  judge  of  said 

county   of  ,   State   of   Oklahoma,   in   the  penal  sum   of 

$ ,  conditioned  as  required  by  law. 


[Seal.]  Judge  of  the  County  Court. 

Sec.  864.     Form  for  legal  notice  for  posting-. 

In  the  Matter  of  the  Estate 

of ,  a  ]Minor.  No.  


NOTICE   OF  SALE  OF  REAL  ESTATE   BY  GUARDIAN. 

Notice  is  hereby  given  that  in  pursuance  of  an  order  of  the 

county  court  of  the  county  of ,  State  of  Oklahoma,  made 

on  the  dsiY  of  ,  19 — ,  the  undersigned,  guardian 

of   the    estate    of   ,   will    sell    at    public    auction    to   the 

highest  bidder,  subject  to  confirmation  by  said  court,   on  the 

day  of  ,  A.  D.  19 — ,  at  o'clock,  —  m.,  at 

the   front  door   of  the   courthouse  in  ,   County, 

Oklahoma,  all  the  right,  title  and  interest  of  said  in 

and  to  the  followinsr  described  real   estate  situated  in  

County,  State  of  Oklahoma,  to-wit:  (Here  describe  real  estate.) 


§§  865,  866         MER wine's  trial  of  title  to  land.  612 

Said  real  estate  will  be  sold  on  the  following  terms  and  con- 
ditions, to-wit :    Cash  in  hand  on  the  confirmation  of  said  sale. 
Dated  this day  of ,  19—. 


Guardian. 


Sec.  865.     Form  for  proof  of  posting  legal  notice. 

State  of  Oklahoma, County,  ss. : 

,  being  duly  sworn,  says  that  on  the  day  of 

,  19 — ,  he  posted  true  copies  of  the  within  notice  in  three 

public  places  in  County,  Oklahoma,  as  follows:    one  at 

the  courthouse  door,  one  at  ,  and  one  at  ,  all  in 

,  Oklahoma.  — • 

Subscribed  and  sworn  to  before  me  this day  of , 

19.— 


[Seal.]  Clerk  of  County  Court. 

Sec.  866.     Form  for  legal  notice  and  the  proof  of  publication 
of  same  in  county  where  land  is  located. 

LEGAL   NOTICE. 

In  the  Matter  of  the  Estate 

of ,  a  Minor.  No.  . 


Notice  is  hereby  given  tha.  xU  pursuance  of  an  order  of  the 

county  court  of  the  county  of ,  State  of  Oklahoma,  made 

on  the  day  of  ,  19—,  the  undersigned,  guardian 

of   the    estate   of   ,    will   sell   at    public   auction,   to   the 

highest  bidder,  subject  to  confirmation  by  said  court,  on  the 

day  of ,  A.  D.  19 — ,  at  o'clock,  —  m.,  at 

the  courthouse  door  in  ,  County,  Oklahoma,  all 

the   right,    title    and   interest    of    said   in    and   to    the 

following    described    real    estate,    situated    in   County, 

State  of  Oklahoma,  to-wit:   (Here  describe  it.) 


613  REAL  ESTATE  SOLD  BY  GUARDIAN.  §  867 

Said  real  estate  will  be  sold  on  the  following  terms  and  con- 
ditions, to-wit :   Cash  in  hand  on  the  confirmation  of  said  sale. 
Dated  the day  of ,  19—. 


Guardian. 


Attorneys. 


State  of  Oklahoma, County,  ss. : 

,  being  first  duly  sworn,  deposes  and  says  he  is  the 

_^  of  the  ;  that  the  said  is  a  weekly  news- 


paper   of   general   circulation,    printed    and    published    in    the 

said  county  of ,  State  of  Oklahoma,  and  has  been  issued 

and  published  continuously  and  uninterruptedly  for  fifty-two 
consecutive  weeks  next  preceding  the  date  of  the  first  publica- 
tion of  the  notice  hereto  attached,  and  up  to  the  present  time, 
and  that  there  was  published  in  said  newspaper  the  notice 
hereto  attached  and  made  a  part  thereof,   and  that  the  first 

publication  thereof  was  on  the day  of ,  19 — ,  and 

was  published  therein  for  consecutive  weeks,   the  last 

publication  coming  on  the day  of  ,  19 — . 

Subscribed  and  sworn  to  before  me  this day  of , 

19—.  , 


[Seal.]  Notary  Public. 

]\[y  commission  expires . 

Sec.  867.     Form  for  legal  notice  and  proof  of  publication  of 
same  in  county  where  the  order  is  made. 

LEGAL    NOTICE. 

In  the  Matter  of  the  Estate 

of ,  a  Minor.  No. 


Notice  is  hereby  given  in  pursuance  of  an  order  of  the  county 

court  of  the  county  of ,  State  of  Oklahoma,  made  on  the 

day  of  ,  19 — ,  the  undersigned  guardian  of  the 


§  868  merwine's  trial  of  title  to  land.  614 

estate  of ,  will  sell  at  public  auction,  to  the  highest  bidder, 

subject  to  confirmation  by  said  court,  on  the  day  of 

,  A.  D.  19 — ,  at  o'clock,  —  m.,  at  the  front  door 

of  the  courthouse  in  ,  County,  Oklahoma,  all  the 

right,  title  and  interest  of  said  in  and  to  the  following 

described  real  estate  situated  in  County,  State  of  Okla- 
homa, to-wit:  (Here  describe  it.) 

Said  real  estate  will  be  sold  on  the  following  terms  and  con- 
ditions, to-wit :    Cash  in  hand  on  the  confirmation  of  said  sale. 

Dated  the day  of ,  19 — . 


Guardian. 


Attorneys. 

State  of  Oklahoma, County,  ss. : 

,   being  duly  sworn,  deposes  and  says  that  he  is  the 

,  of ,  a  weekly  newspaper  printed  and  published  in 

,  in  tlie  said  county,  which  newspaper  has  been  a  legal 


publication  with  a  bona  fide  subscription  list  and  general  cir- 
culation in  County  for  fifty-two  consecutive  weeks  next 

preceding  the  date  of  the  first  publication  of  the  notice  hereto 
attached. 

That  a  notice,  of  which  the  attached  is  a  true  copy,  was  pub- 
lished once  each  week  for consecutive  weeks  in  said  news- 
paper, the  same  being  in  the  regular  issues  of  the  following 
dates:  and  ,  19 — . 

Subscribed  and  sworn  to  before  me  by ,  the  of 

,  this day  of ,  19 — . 


[Seal.]  Notary  Public. 

]\Iy  commission  expires . 

Sec.  868.     Form  for  report  of  the  sale  by  guardian. 

In  the  County  Court  of County,  State  of  Oklahoma. 

In  the  IMatter  of  the  Estate 

of ,  a  Minor.  No. . 


615  RE.VL   ESTATE    SOLD   BY    GUARDIAN.  §  868 

RETURN  OF  SALE  OF  REAL  ESTATE. 

Comes  now ,  guardian  of  the  estate  of ,  a  minor, 

and  shows  to  the  court  that,  pursuant  to  the  decree  of  the  court 

entered  herein  on  the  day  of ,  19 — ,  authorizing 

him,  as  such  guardian,  to  sell  all  that  part  of  the  real  estate 

belonging  to  said  ,  a  minor,  hereinafter  described.     He 

caused  public  notice  to  be  given  as  provided  by  law,  and  said 

order  by  publication  for successive  weeks  in  the  , 

of  County,    Oklahoma,   and   in   the  ,   of  

County,  Oklahoma,  and  by  posting  notices  as  required  by  law, 
that  he  would  sell,  at  public  auction,  to  the  highest  bidder,  at 

the  front  door  of  the  courthouse,  in  County,  Oklahoma, 

on  the  day  of  ,  19 — ;  that  on  the  day  of 

,  19 — ,  he  sold  said  real  estate,  to-wit:  (Here  specifically 

describe  it)  to ,  for  the  sum  of  $ ,  on  the  follow- 
ing terms,  to-wit :  Cash  in  hand  on  the  confirmation  of  sale  by 

this  court ;  that  said  was  the  highest  bidder  therefor, 

and  said  sum  of  $ was  the  highest  and  best  sum  bid,  and 

that  said  sum  of  $ is  not  disproportionate  to  the  value 

of  said  property. 

"Wherefore,  said  prays  the  court  to  enter  its  order 

setting  said  return  for  hearing,  and  that  upon  said  hearing  being 
had,  he  be  directed  to  execute  a  proper  conveyance  thereof  to 
said  purchaser. 

Dated  this day  of ,  19 — . 


State  of  Oklahoma, County,  ss. : 

,  being  duly  sworn  on  oath,  says  that  he  is  the  guard- 
ian above  named;  that  he  has  read  the  above  and  foregoing 
return  and  knows  the  contents  thereof,  and  that  the  statements 
therein  contained  are  true. 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


[Seal.]  Clerk  of  County  Court. 


§§869,870         merwine's  trial  op  title  to  land.  616 

Sec.  869.     Form  for  the  order  for  the  hearing  of  the  guard- 
ian's report  and  return  of  sale  of  real  estate. 

In  the  County  Court  of County,  State  of  Oklahoma. 

In  the  Matter  of  the  Estate 

of ,  a  IMinor.  No.  . 

ORDER  FOR  HEARING  RETURN  OF  SALE  OF  REAL 

ESTATE. 

Now,  on   this  day  of  ,   19 — ,  ,  as   the 

guardian  of  the  estate  of ,  a  minor,  having  made  and  filed 

herein  a  return  of  proceedings  had  under  order  of  sale  of  real 

estate  of  said  estate,  made  and  entered  herein  on  the day 

of ,  19 — ,  and  a  hearing  on  said  return  being  asked  for  in 

said  return  upon  a  day  before  the  first  day  of  the  next  term 
after  the  sale  reported  in  said  return. 

It  is  ordered  that  said  return  be,  and  hereby  is,  set  for  hearing 

on  the day  of ,  19 — ,  at o'clock,  —  m.,  and 

that  notice  of  the  time  and  place  of  said  hearing  be  given  by 
notices  posted  in  three  public  places  in  County,  Okla- 
homa.                                                 , 

[Seal.]  Judge  of  the  County  Court. 

Sec.  870.     Form  for  the  notice  of  hearing  return  of  the  sale 
and  proof  of  posting  the  same. 

In  the  County  Court  of County,  State  of  Oklahoma. 

In  the  Matter  of  the  Estate 

of ,  a  Minor.  No.  . 

NOTICE  OF  HEARING  RETURN  OF  SALE  OF 
REAL    ESTATE. 

Notice  is  hereby  given  that  ,  the  duly  appointed  and 

qualified  guardian  of  the  estate  of ,  a  minor,  has  returned 

and  presented  for  confirmation,  and  filed  in  said  court  his  return 

of  the  sale  of  the  following  described  real  estate  of  said , 

a  minor,  to-wit:    (Here  describe  real  estate),   for  the  sum  of 

$ ,  and  that  ,  the  day  of  ,  19 — ,  at 

o'clock,  in  the  noon  of  said  day,  at  the  county 


617  REAL  ESTATE  SOLD  BY  GUARDIAN.  §  871 

courtroom  in  ,  in  said  county  of  ,  has  been  duly 

appointed  by  said  court  for  hearing  said  return,  at  which  time 
the  next  of  kin  and  any  person  interested  in  said  estate  may 
appear  and  file  his  exceptions  in  writing  to  said  return  and 
contest  the  same,  and  are  hereby  referred  to  said  return  for 
further  particulars. 

Tn  Testimony  Whereof,  I  have  hereunto  set  my  hand  and 
affixed  the  seal  of  said  court,  this day  of ,  19 — . 


[Seal.]  Judge  of  the  County  Court. 

State  of  Oklahoma,  Okmulgee  County,  ss. : 

I,  ,  of  lawful  age,   being  duly  sworn,   on   oath,  say: 

That  on  the day  of ,  A.  D.  19—,  I  posted  correct 

and  true  copies  of  the  foregoing  notice  in  three  of  the  most 

public  places  in  said County,  as  follows,  to-wit :    One  at 

the  front  door  of  the  courthouse,  one  at  ,   and  one  at 

^  all  in , County,  State  of  Oklahoma. 


Subscribed  and  sworn  to  before  me,  this day  of 

19- 


[Seal.]  Clerk  of  County  Court. 

Sec.  871.  Form  for  offer  of  more  than  ten  per  cent,  of  the 
amount  bid  at  guardian's  sale  of  ward's  real 
estate. 

In  the  County  Court  of County,  State  of  Oklahoma. 

In  the  ]\Iatter  of  the  Estate 

of ,  a  INIinor.  No.  . 

To  ,  Judge  of  the  County  Court: 

I  hereby  offer  the  sum  of  $ for  the  following  described 

real  estate,  to-wit:  (Here  describe  real  estate),  in County, 

Oklahoma,  it  being  the  land  of ,  a  minor,  now  being  sold 

by  order  of  your  court  by  the  guardian,  and  the  return  of  which 

is  set  for  hearing  on  the day  of ,  19 — . 

Respectfully  submitted. 


§  872  merwine's  trial  of  title  to  land.  618 

Sec.  872.  The  order  confirming  sale  of  real  estate  to  party 
bidding  ten  per  cent,  more  than  the  bid  at  public 
auction. 

County  Court  op County,  State  of  Oklahoma. 

In  the  ]\Iatter  of  the  Estate 

of ,  a  Minor.  No. . 


ORDER  CONFIRMING   SALE   OF   REAL  ESTATE. 

Now,  on  this day  of ,  19 — ,  there  coming  on  for 

hearing  the  return  of  sale  made  by  ,  as  the  guardian  of 

the  estate  of  the  said ,  a  minor,  and  said ,  guardian, 

appearing  in  person  and  by  his  attorneys, ,  in  support  of 

the  confirmation  of  the  sale,  and  no  person  or  persons  appearing 
against  the  confirmation  of  the  sale,  and  the  court,  having 
examined  said  return,  and  having  heard  and  considered  the 
evidence  of  witnesses  offered  in  support  of  said  return,  and  being 
fully  advised  in  the  premises,  finds: 

That,  in  pursuance  of  said  order  of  sale,  said ,  guardian, 

on  the  day  of  ,  19 — ,  sold  the  portion  of  the  real 

estate  of  said  estate,  described  as  follows,  to-wit:  (Here  describe 

it),  situated   in   County,   Oklahoma,   at   public  sale   to 

,  upon  the  following  terms,  to-wit : 

For  the  sum  of  $ ,  payable  as  follows:    Cash  in  hand 

upon  confirmation  of  sale.  That  an  offer  of  more  than  ten  per 
cent,  more  in  amount  than  that  named  in  the  return  was  made 
to  the  court  in  writing,  by  a  responsible  person,   as  follows: 

,  who  offered  in  writing  the  sum  of  $ ,  payable  cash 

in  hand  upon  confirmation  of  sale. 

That  said  sale  was  made  after  due  notice  as  prescribed  by  said 

order   of   sale;    that   said   purchaser,   ,   was    the   highest 

bidder  therefor,  and  said  sum  of  $ the  highest  and  best 

sum  bid ;  tliat  said  sale  was  legally  made  and  fairly  conducted ; 

that  said  sum  of  $ is  not  disproportionate  to  the  value  of 

the  property  sold,  and  that  a  sum  exceeding  such  bid  at  least 
ten  (10)  per  cent.,  exclusive  of  the  expense  of  a  new  sale,  cannot 
be  obtained,  and  that  the  said  guardian  in  all  things  proceeded 


619  REAL  ESTATE  SOLD  BY  GUAKDL^N,  §  873 

and  conducted  and  managed  such  sale  as  required  by  the  statute 
in  such  case  made  and  provided,  and  as  by  said  order  of  sale 
required  and  directed. 

It  is  Therefore  ordered,  adjudged  and  decreed  by  the  court 
that  the  said  sale  to  be,  and  the  same  is,  hereby  con- 
firmed and  approved  and  declared  valid,  and  the  said  guardian 

is  directed  to  execute  to  said  purchaser, ,  proper  and  legal 

convevance  of  said  real  estate.* 


[Seal.]  Comity  Judge. 

Sec.  873.     Form  for  the  deed  from  the  guardian  to  the  pur- 
chaser. 

GUARDIAN'S   DEED. 

This  Indenture,  made  the  day  of  ,  19 — ,  at 

,  State  of  Oklahoma,  by  and  between  ,  the  duly 


appointed,  qualified  and  acting  guardian  of  ,  a  minor, 

party  of  the  first  part,  and ,  the  party  of  the  second  part. 

WITNESSETH,  That,  Whereas,  on  the  day  of  , 

19 — ,  the  county  court  within  and  for  the  county  of  , 

State  of  Oklahoma,  made  an  order  of  sale,  authorizing  the  said 
party  of  the  first  part  to  sell  certain  real  estate  of  the  said 

,  a  minor,   situated  in   the  county   of  ,   State  of 

Oklahoma,  described  in  said  order  of  sale,  . 


And,  "Whereas,  under  and  by  virtue  of  said  order  of  sale,  and 
pursuant  to  legal  notices  given  thereof,  the  said  party  of  the 

first  part,  on  the  day  of  ,  A.  D.  19 — ,  sold  the 

hereinafter  described  real  estate  specified  and  described  in  said 
Older  of  sale,  subject  to  confirmation  by  said  court,  for  the  sum 

of  $ ,  to ,  he  being  the  highest  and  best  bidder,  and 

that  being  the  highest  and  best  sum  bid. 

And,  Whereas,  the  said  county  court,  upon  the  due  and  legal 

return  of proceedings  under  the  said  order  of  sale,  made 

by  the  said  party  of  the  first  part,  on  the day  of , 

A.  D.  19 — ,  did,  on  the  day  of  ,  19 — ,  make  an 

*  Certified  copy  of  the  confirma-  with  the  register  of  deeds  of  the 
tion    should    be    filed    and    recorded       county. 


§  873  MERWINE  'S   TRIAL    OF    TITLE   TO   LAND.  620 

order  confirming  said  sale  and  directing  conveyances  to  be  exe- 
cuted to  the  said  party  of  the  second  part,  a  certified  copy  of 
which  order  of  confirmation  was  recorded  in  the  office  of  the 

register  of  deeds  of  said  County,  within  which  the  said 

land  is  situated,  on  the  day  of  ,  A.  D.  19 — ,  in 

book  ,  on  page  ,  and  which  said  order  of  con- 
firmation now  on  file  and  of  record  in  said  county  court,  and 
which  said  record  thereof  in  said  register  of  deed's  office  are 
hereby  referred  to  and  made  a  part  of  this  indenture. 

Now,  Therefore,  the  said ,  as  the  guardian  of  the  said 

,  as  aforesaid,  the  party  of  the  first  part,  pursuant  to  the 

order  last  aforesaid  of  the  said  county  court,  and  for  and  in 

consideration  of  the  sum  of  $ ,  to  in  hand  paid 

by  the  said  party  of  the  second  part,  the  receipt  whereof  is 
hereby  acknowledged,  has  granted,  bargained,  sold  and  con- 
veyed, and  by  these  presents  does  grant,  bargain,  sell  and  convey 
unto  the  said  party  of  the  second  part,  his  heirs  and  assigns 

forever,  all  the  right,  title,  interest  and  estate  of  the  said 

in  and  to  all  the  certain  lots,  pieces  or  parcels  of  land,  situated, 

lying  and  being  in  said  county  of  ,  State  of  Oklahoma, 

and  bounded  and  particularly  described  as  follows,  to-wit:  (Here 
specifically  describe  real  estate  conveyed),  together  with  the 
tenements,  hereditaments  and  appurtenances  whatsoever,  to  the 
same  belonging  or  in  any  wise  appertaining. 

To  Have  and  to  Hold,  all  and  singular,  the  above  mentioned 
and  described  premises,  unto  the  said  party  of  the  second  part, 
his  heirs  and  assigns  forever. 

In  Witness  Whereof,  the  said  party  of  the  first  part,  guard- 
ian as  aforesaid,  has  hereunto  set  his  hand  the  day  and  year 

first  above  written.  , 

Guardian. 

Signed  and  delivered  in  presence  of : 


State  of  Oklahoma, County,  ss. : 

Be  it  Eemembered  that,  on  this  day  of ,  A.  D. 

19 before  me,  ,  a  within  and  for  said  county 


621  REAL  ESTATE  SOLD  BY  GUARDIAN.  §  874 

and    State,   personally   appeared   ,    as    the    guardian    of 

,  a  minor,  to  me  knowTi  to  be  the  identical  person  who 

executed  the  within  and  foregoing  instrument,  and  acknowledged 
to  me  that  he  executed  the  same  in  the  capacity  therein  stated 
as  his  free  and  voluntary  act  and  deed  for  the  uses  and  purposes 
therein  set  forth. 

In  Witness  "Whereof,  I   have  hereunto   set  my  hand  and 
official  seal,  at  said  county,  the  day  and  year  last  above  written. 


[Seal.]  Notary  Public. 

My  commission  expires . 

Sec.  874.    Procedure  by  which  guardian  is  authorized  to  loan 
funds  of  ward — The  petition  therefor. 

In  the  County  Court  of County,  State  of  Oklahoma. 

In  the  Matter  of  the  Estate 

of ,  a  minor, ,  Guardian.  No. . 

PETITION  OF  GUARDIAN  TO  LOAN  WARD'S  MONEY. 

Comes  now ,  guardian  of ,  a  minor,  and  states  to 

the  court  that has  applied  to  him  for  a  loan  of  $ , 

out  of  the  funds  of  his  said  ward,  for  a  term  of  years, 

with  interest  at  the  rate  of per  cent,  per  annum,  payable 

annually,  with  the  privilege  of  paying  one or  all  of  said 

loan  at  any  interest  paying  period  after years  from  the 

date  of  said  loan ;  said  loan  to  be  secured  by  a  first  mortgage  on 

the  following  described  real  estate  in  the  city  of ,  in  the 

county  of ,  and  State  of  Oklahoma,  and  more  particularly 

described  as  follows,  to-wit:  (Here  describe  it.) 

Your  petitioner  believes  that  said  real  estate,  together  with 

the  building  to  be  located  and  built  thereon,  according 

to  the  plans  and  specifications  herewith  presented  to  the  court, 
will  be  good  security  for  said  loan,  and  that  it  will  be  for  the 
best  interests  of  said  ward  that  said  loan  be  made. 

Wherefore,  your  petitioner  prays  that  an  order  or  record  be 
made,  authorizing  him  to  make  said  loan  under  the  direction 
and  approval  of  this  court,  and  that  appraisers  be  appointed  to 


§875  merwine's  trial  op  title  to  land.  622 

appraise  said  real  estate,  and  for  such  other  and  further  orders 
respecting  the  same  as  the  court  may  deem  just  and  proper. 


Guardian. 

Sec.  875.     The  form  for  order  of  loan — The  appointment  of 
appraisers. 

In  the  County  Court  op County,  State  of  Oklahoma. 

In  the  Matter  of  the  Estate 

of ,  a  Minor.  No. . 


ORDER  FOR  LOAN. 

This  cause  coming  on  this  day  for  hearing,  upon  the  petition 

of ,  guardian  of  the  above  named ,  asking  leave  to 

loan  $ of  his  ward's  money  to  one  ,  upon  the  real 

estate  described  in  said  petition,  and  asking  that  appraisers  be 
appointed  to  appraise  said  real  estate  with  the  improvements  so 
to  be  erected  thereon,  and  make  a  report  of  the  same  to  this 
court,  and  the  court,  after  hearing  said  petition,  the  evidence 
and  argument  of  counsel,  and  being  fully  advised  in  the  prem- 
ises, orders  that  the  prayer  of  said  petition  be  granted;  that 

, , and ,  be  appointed  appraisers  to  appraise 

said  real  estate,  together  with  the  improvements  so  to  be  placed 

thereon;  that  said  furnish  a  complete  abstract  of  said 

real  estate  to  date,  and  the  same  to  be  examined  by  the  attor- 
neys for  said  guardian,  and  their  opinion  as  to  the  condition  of 
the  title  to  the  same  to  be  filed  herein. 

It  is  further  ordered  that  if  said  appraisement  shows  that  said 
real  estate  and  said  improvements  are  sufficient  security  for  said 
loan  and  said  title  to  said  real  estate  is  good,  then  said  guardian 

is  authorized  to  loan  the  sum  of  $ of  his  ward's  money 

to  the  said ,  for years,  with  interest  at  the  rate  of 

per  cent,  per  annum,  payable  annually,  with  the  privilege 

of  paying  the or  all  of  said  loan  at  any  interest  paying 


623  REAL   ESTATE   SOLD   BY    GUARDIAN.  §§876,877 

period  after  the year  from  the  date  thereof,  and  report 

the  same  to  the  court  for  its  approval  or  rejection. 

Witness  my  hand  and  seal  this day  of ,  19 — . 


[Seal.]  Judge  of  the  County  Court. 

Sec.  876,    The  form  for  the  oath  of  appraisers. 

In  the  County  Court  of County,  State  op  Oklahoma. 

In  the  Matter  of  the  Estate  of , 

a  Minor, ,  Guardian.  No. . 

AFFIDAVIT     OF    APPRAISERS. 

State  of  Oklahoma, County,  ss. : 

We,  ,  and  ,  being  first  duly  sworn,  on 

oath  say  that  we  will  make  a  just  and  true  appraisement,  at  its 

actual,  true  cash  value,  of  the  property  of  ,  offered  as 

security  for  a  loan  out  of  the  estate  of  ,  a  minor,  to  the 

best  of  our  knowledge  and  belief.    So  help  us  God. 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


[Seal.]       Notary  Puhlic  in  and  for  said  County  and  State. 
My  commission  expires  . 

Sec.  877.    The  form  for  the  report  of  the  appraisers. 

We,  ,  and  ,  appraisers  appointed  by  the 

court  herein  on  the day  of ,  19 — ,  to  appraise  the 

property  of  ,  offered  as  security  for  a  loan  out  of  the 

estate  of  ,  a  minor,  do  appraise  the  following  described 

real  estate,  to-wit:   (Here  describe  it),  together  with  a  

building  to  be  erected  thereon  according  to  the  plans  and  speci- 
fications submitted  to  us,  at  the  cash  sum  of  $ , 


Appraisers. 


§§  878, 879         merwine's  trial  op  title  to  land,  624 

Sec.  878.    The  form  for  opinion  of  attorneys  as  to  title. 

County  Court  of County,  State  of  Oklahoma. 

In  the  Matter  of  the  Estate  of , 

a  Minor, ,  Guardian.  No. . 


OPINION  OF  ATTORNEY  AS  TO  TITLE  TO  REAL 

ESTATE. 

To ,  Guardian: 

This  is  to  certify  that  we  have  examined  the  abstract  of  title 
to  the  following  described  real  estate  in  County,  Okla- 
homa, to-wit:    (Here  describe  it),  furnished  and  prepared  by 

,  of  ,  Oklahoma,  and  we  are  of  the  opinion  that 

said  abstract,  at  the  date  of  the  last  continuation  thereof,  shows 
that has  good  fee  simple  title  thereto,  except . 


Attorneys. 
Sec.  879.    The  form  for  the  mortgage  to  guardian. 

REAL    ESTATE    MORTGAGE. 

This  Indenture,  made  and  entered  into  this  day  of 

,  19 — ,  by  and  between  and  ,  his  wife,  of 


the  town  of  ,  County,  Oklahoma,  parties  of  the 

first  part,  and ,  as  the  guardian  of ,  a  minor,  party 

of  the  second  part, 

WITNESSETH,  that  said  parties  of  the  first  part,  in  consider- 
ation of  the  sum  of  $ ,  the  receipt  whereof  is  hereby  ac- 
knowledged, do  by  these  presents  grant,  bargain,  sell  and  convey 
unto  said  party  of  the  second  part,  his  heirs  and  assigns,  all  the 

following  described  real  estate,  situated  in  the  town  of  , 

■ County,  State  of  Oklahoma,  to-wit:  (Here  describe  it). 


together  with  all  the  improvements  thereon. 

To  Have  and  to  Hold  the  same,  together  with  all  and  singular 
the  tenements,  hereditaments  and  appurtenances  thereunto  be- 
longing, or  in  any  wise  appertaining  forever. 

This  conveyance  is  intended  as  a  mortgage  to  secure  the  pay- 
ment of  promissory  note —  of  even  date  herewith,  for 

$ ,  due  on  the day  of ,  19 — ,  made  to , 


625  REAL  ESTATE  SOLD  BY  GUARDIAN.  §  879 

as  the  guardian  of  the  estate  of  ,  a  minor,  payable  at 

,  Oklahoma,  with  per  cent,  interest  per  annum, 

payable  annually,   and  if  interest  be  not  paid  when  due,  to 

become  as   principal  and  draw  per  cent,   interest   per 

annum,  payable  annually,  and  if  principal  or  interest  be  not 
paid  when  due,  to  pay  all  reasonable  costs  of  collection,  includ- 
ing attorney's  fees  of  and  signed  by  . 

Said  first  parties  hereby  covenant  that  they  are  the  owners 
in  fee  simple  of  said  premises  and  that  they  are  free  and  clear 
of  all  incumbrances;  that  they  have  good  right  and  authority 
to  convey  and  incumber  the  same,  and  that  they  will  warrant 
and  defend  the  same  against  all  lawful  claims  of  all  persons 
whomsoever.     Said  parties  agree  to  insure  the  buildings  on  said 

premises  in  a  sum  of  not  less  than  $ ,  for  the  benefit  of 

the  mortgagee,  and  maintain  such  insurance  during  the  exist- 
ence of  his  mortgage.  Said  parties  agree  to  pay  all  taxes  and 
assessments  lawfully  assessed  against  said  premises  before  de- 
linquent. 

Now,  if  said  first  parties  shall  pay,  or  cause  to  be  paid,  to  said 
second  party,  his  heirs,  successors  or  assigns,  said  sum  of  money 
in  the  above  described  note  mentioned,  together  with  all  interest 
thereon,  according  to  the  terms  and  tenor  of  said  note,  and  shall 
make  and  maintain  said  insurance  and  pay  such  taxes  and  as- 
sessments, then  these  presents  shall  be  wholly  discharged  and 
void,  otherwise  shall  remain  in  full  force  and  effect.  If  such 
insurance  is  not  effected  and  maintained,  or  if  any  and  all  taxes 
and  assessments  which  are,  or  may  be,  lawfully  assessed  against 
said  premises,  or  any  part  thereof,  are  not  paid  before  delin- 
quent, then  said  mortgagee  may  effect  such  insurance,  or  pay 
said  taxes  or  assessments,  and  shall  be  allowed  interest  thereon 

at  the  rate  of  per  cent,  per  annum  until  paid,  and  this 

mortgage  shall  stand  as  security  for  all  such  payments,  and  if 
said  sum  or  sums  of  money,  or  any  part  thereof,  is  not  paid 
when  due,  or  if  any  such  insurance  is  not  effected  and  maintained, 
or  taxes  or  assessments  are  not  paid  before  delinquent,  or  if  any 
interest  be  not  paid  when  due,  the  holder  of  said  note  and  this 
mortgage  may  elect  to  declare  the  whole  sum  or  sums  and  in- 


§  880  merwine's  trial  of  title  to  land.  626 

terest  thereon  due  and  payable  at  once,  and  proceed  to  collect 
said  debt,  including  attorney's  fees  and  to  foreclose  this  mort- 
gage, and  shall  become  entitled  to  the  possession  of  said  premises. 
In  Witness  Whereof,  the  said  parties  of  the  first  part  have 
hereunto  set  their  hands,  the  day  and  year  first  above  written. 


State  of  Oklahoma, County,  ss. : 

Before  me, a  notary'-  public  within  and  for  said  county 

and  State,  on  this  day  of  ,  19 — ■,  personally  ap- 
peared    and  ,  his   wife,  to  me  known  to  be  the 

identical  persons  who  executed  the  within  and  foregoing  instru- 
ment, and  acknowledged  to  me  that  they  executed  the  same  as 
their  free  and  voluntary  act  and  deed  for  the  uses  and  purposes 
therein  set  forth. 

Witness  my  hand  and  notarial  seal  this day  of , 

19-.  , 

[Seal.]  Notary  Public. 

My  commission  expires . 


Sec.  880.     The  form  for  the  report  of  guardian  as  to  loan. 

County  Court  of County,  State  of  Oklahoma. 

In  the  Matter  of  the  Estate  of , 

a  Minor, ,  Guardian.  No. 


REPORT  OP  GUARDIAN  ON  LOAN  TO 


Comes  now ,  as  guardian  of ,  a  minor,  and  states 

to  the  court  that  said  appraisers,  as  shown  by  their  report  filed 
herein,  appraise  said  real  estate  with  the  improvements  to  be 
made  thereon,  in  the  sum  of  $ ;  that,  acting  upon  said  ap- 
praisement and  the  order  of  the  court  heretofore  herein  made, 

he  has  made  a  loan  of  $ of  his  said  ward's  money  to  the 

said  ,  for  a  period  of years,  with  interest  at  the 

rate  of per  cent,  per  annum,  payable  annually  from  date 

of  note  and  mortgage  until  paid ;  that  the  said furnished 

an  abstract  of  title  to  said  real  estate,  and  the  same  has  been 


627  REAL  ESTATE  SOLD  BY  GUARDIAN,  §  881 

examined  by  my  attorneys  and  title  thereto  found  to  be  good  in 

the  said  ,  as  will  appear  from  said  opinion  in  writing 

filed  in  this  case :  that  with  said  opinion  of  said  attorneys  as  to 
the  title  of  said  real  estate,  there  is  herewith  submitted  to  this 
court  said  abstract  of  title  for  its  inspection,  together  with  the 
note  and  the  mortgage  securing  said  note,  and  that  the  said 

has  paid  the  costs  of  this  proceeding. 

Wherefore,  this  guardian  prays  this  honorable  court  that 
said  appraisement  be  approved  and  that  this  report  of  your 
guardian  be  approved  and  confirmed,  and  if  the  court  deem  it 
to  be  to  the  best  interest  of  said  ward,  that  said  loan  be  author- 
ized and  approved. , 

As  Guardian  of  . 


Sec.  881.    The  form  for  the  order  approving  and  confirming 
loan. 

County  Court  of County,  State  of  Oklahoma. 

In  the  Matter  of  the  Estate  of , 

a  ]\Iinor, ,  Guardian.  No. . 


ORDER  APPROVING  LOAN  TO 


This  cause  came  on  for  hearing  upon  the  report  of  the  guard- 
ian and  of  the  appraisers  herein,  wherein  guardian  reports  to 
the  court  the  several  things  done  by  him  in  making  a  loan  of 

$ of  his  ward's  money  to ,  in  which  he  prays  that 

his  said  report  be  approved  and  the  loan  confirmed,  and  the 
court,  after  hearing  the  report,  the  e^^dence  and  the  argument 
of  counsel,  and  after  examining  the  opinion  of  title  by  attorneys, 
and  inspecting  the  mortgage  and  note,  and  being  fully  advised 
in  the  premises,  finds  that  said  guardian  has  fully  complied  with 
the  order  of  the  court  heretofore  made,  and  his  said  report,  the 
appraisement  and  proceedings  in  the  premises  are  hereby  ap- 
proved and  confirmed. 


§§  882, 883         merwine's  trial  of  title  to  land.  628 

It  is  Therefore  ordered  that  said  loan  of  $ ,  made  by 

the  said ,  as  guardian  of  the  estate  of ,  a  minor,  to 

the  said  be,  and  the  same  is,  hereby  approved  and  con- 
firmed. 

"Witness  my  hand  and  seal  of  said  court  this  day  of 

,  19-.  , 

Judge  of  the  County  Court, County,  Oklahoma. 

[Seal.] 

Sec.  882.  Set  of  forms  for  the  appointment  of  a  guardian  and 
for  sale  of  real  estate  by  guardian — The  form  for 
selection  of  guardian  by  a  minor  over  fourteen 
years  of  age,  and  for  sale  of  real  estate  at  pri- 
vate sale. 

State  of  Oklahoma, County,  ss. : 

In  the  County  Court. 
In  the  Matter  of  the  Guardianship 

of ,  a  ]\Iinor.  No.  . 

NOMINATION    BY    MINOR. 

Comes  now  ,  and  respectfully  states  to  the  court  that 

he  is  now  years  of  age ;  that  has  been  acting  as 

his  guardian;  that  he  has  the  right  to  nominate  his  own  guard- 
ian now,  and  does  nominate  ,  and  respectfully  asks  the 

court  to  make  an  order  appointing  him. 

Done  in  open  court  this day  of ,  19 — . 


Witness : 


Sec.    883.    Form   for   the   petition   for   the   appointment    of 
guardian. 

State  of  Oklahoma, County,  ss. : 

In  the  County  Court, 
In  the  Matter  of  the  Guardianship 

of ,  a  Minor.  No.  . 


629  REAL  ESTATE  SOLD  BY  GUARDIAN,  §  884 

PETITION    FOR    APPOINTMENT    OF    GUARDIAN. 

Comes  now and  shows  to  the  court  that  he  is  a  resident 

of  County,  State  of  Oklahoma,  and  that  is  a 

minor  over years  of  age,  and  that  he  has  filed  his  nom- 
ination in  form  of  petition  herein ;  that  said  has  estate 

of  the  following  general  character  and  value  in  the  county  of 
,  State  of  Oklahoma,  to-wit:  (Here  describe  same.) 

That  the  next  of  kin  and  persons  having  care  of  said  

are  . 

That  petitioner  is  . 

That  it  is  necessary  that  a  guardian  be  appointed  for  said 
for  the  following  reasons :  . 


That for  whom  letters  of  guardianship  are  asked  to  be 

issued,  is  a  resident  of County,  having  his  postoffice  ad- 
dress at  ,  Oklahoma. 

Wherefore,  petitioner  prays  that be  appointed  guard- 
ian of  said ,  a  minor. 


Petitioner. 


Sec.  884.    Form  for  the  oath  to  the  petition. 


State  of  Oklahoma,  County,  ss. : 

I,  the  undersigned  petitioner,  being  duly  sworn,  on  oath  say 
that  I  have  read  the  foregoing  petition,  and  know  the  contents 
thereof,  and  that  the  statements  therein  contained  are  true,  as 
I  verily  believe.  . 

Subscribed  and  sworn  to  before  me  this day  of , 

19—.  , 


[Seal.]  Clerk  of  the  County  Court. 

I,  the  undersigned  minor,  being  over  the  age  of years, 

and  a  resident  of County,  Oklahoma,  hereby  join  in  the 

above  petition  and  request  that  the  prayer  of  said  petition  be 

granted,  and  do  here  now  nominate  and  choose  said to  act 

as  my  guardian.  . 

Dated  this ,  19—. 


§§885,886        merwine's  trial  of  title  to  land,  630 

Sec.  885.    Form  for  the  order  appointing  guardian. 

State  of  Oklahoma, County,  ss. : 

In  the  County  Court. 
In  the  Matter  of  the  Guardianship  of 

,  a  Minor.  No.  -. 


Now,  on  this,  the  day  of  ,  19 — ,  comes  

and  files  in  this  court  his  nomination  in  writing,  showing  that 

he  is  over  years  of  age  and  requesting  that  be 

appointed  as  his  guardian  to  supersede  ,  who  has  been 

acting  in  such  capacity,  and  the  court,  having  examined  said 
nomination  and  having  taken  testimony  under  oath,  and  being 
fully  advised  in  the  premises,  approves  the  nomination  of  said 
by  said ,  as  his  guardian,  and  is  of  the  opinion  that 


he  should  be  appointed  to  supersede  the  former  guardian. 

It  is  Therefore  ordered  that  said be,  and  he  is  hereby, 

appointed  guardian  of  the  person  and  estate  of  the  said , 

a  minor,  and  that  letters  of  guardianship  issue  to  him  upon  his 
taking  and  subscribing  the  oath  required  by  law  r::^  c-r-cuting 

bond  to  said  minor  in  the  penal  sum  of  $ ,  ■  '  ..  sureties 

approved  by  the  judge  of  said  court. 

It  is  further  ordered  that  the  power  and  authority  of  the 

said  ,  as  guardian  of  said  minor,  is  by  said  nomination 

and  this  approval  ordered  terminated,  and  said  is  or- 
dered within  days  to  make  and  file  in  this  court  a  final 

report  of  all  his  acts  and  doings  as  such  guardian  since  his 

last  report.  , 

Judge  of  the  County  Court. 

Sec.  886.     Form  for  the  letters  of  guardianship. 

State  of  Oklahoma, County,  ss. : 

In  the  County  Court. 
In  the  Matter  of  the  Guardianship  of 

,  a  ]\Iinor.  No.  . 

is  hereby  appointed  guardian  of  the  person  and  estate 


of ,  a  minor. 


631  REAL   ESTATE    SOLD   BY   GUARDIAN.  §§887,888 

Witness ,  judge  of  the  county  court  of County, 

State  of  Oklahoma,  with  the  seal  thereof  affixed,  the day 

of ,  A.  D.  19—. 


[Seal.]  Judge  of  the  County  Court. 

Sec.  887.    Form  for  the  oath  of  guardian. 

State  of  Oklahoma,  County,  ss. : 

I, ,  do  solemnly  swear  that  I  will  discharge  all  and  sin- 
gular the  duties  of  guardian  of  the  person  and  estate  of , 

a  minor,  according  to  law,  and  to  the  best  of  my  ability.  So 
help  me  God.  . 

Subscribed  and  sworn  to  before  me  this day  of , 

19—.  , 


[Seal.]  Clerk  of  the  County  Court. 

Sec.  888.    Form  for  the  guardian's  bond. 

State  of  Oklahoma, County,  ss. : 

In  the  Comity  Court. 
In  the  Matter  of  the  Guardianship  of 

,  a  ]\Iinor.  No. . 

Know  All  JMen  by  These  Presents,  that  we,  ,  as 

principal,   and  and  ,   as  sureties,   are  held  and 

firmly  bound  unto ,  a  minor,  in  the  penal  sum  of  $ , 

lawful  money  of  the  United  States,  for  the  payment  of  which 
well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  execu- 
tors, administrators  and  assigns,  jointly  and  severally,  by  these 
presents. 

The  condition  of  the  above  obligation  is  such,  that,  whereas, 
by  order  of  the  county  court  of  County,  State  of  Okla- 
homa, made  and  entered  on  the  day  of  ,  A.  D. 

19 — ^  the  above  named  principal  was  appointed  guardian  of  the 

person  and  estate  of  the  above  named  ,   a  minor,  and 

letters  of  guardianship  were  directed  to  issue  to  said  principal 
upon  his  taking  and  subscribing  the  oath  required  by  law  and 


§§889,890         merwine's  trial  op  title  to  land.  632 

executing  a  bond  to  said  ward  in  the  penal  sum  of  $ ,  with 

sureties  to  be  approved  by  the  judge  of  said  court. 

Now,  Therefore,  if  the  above  bounden  principal  shall  faith- 
fully execute  the  duties  of  such  trust  as  such  guardian,  accord- 
ing to  law,  then  this  obligation  shall  be  void,  otherwise  to  remain 
in  full  force  and  effect. 

Witness  the  hands  of  said  principal  and  said  «'  this 
day  of ,  19 — .       , 


Sec.  889.    Form  for  the  oath  of  sureties. 

State  of  Oklahoma,  County,  ss. : 

The  undersigned,  sureties  on  the  foregoing  bond,  being  duly 
sworn,  on  oath  each  for  himself,  says :  I  am  a  resident  house- 
holder and  freeholder  within  the  State  of  Oklahoma,  and  have 
property  within  said  State  worth  over  and  above  all  my  just 
debts  and  liabilities,  exclusive  of  property  exempt  from  execu- 
tion, the  sum  set  out  and  stated  below,  that  is  to  say: 

I,  ,  am  worth  the  sum  cf  $ . 

I,  ,  am  worth  the  sum  of  $ . 


Subscribed  and  sworn  to  Before  me  this day  of 

19—.  


[Seal.]  Clerk  of  the  County  Court. 

I  hereby  approve  the  above  bond  this  day  of , 

19-.  , 

Judge  of  the  County  Court. 

Sec.  890.    Form  for  the  inventory  and  appraisement. 
In  the  Matter  of  the  Estate  and  Guardianship 

of ,  a  Minor.  In  the  County  Court. 

An  inventory  of  the  estate,  real  and  personal,  of  said -, 

a  minor,  that  has  come  to  the  possession  or  knowledge  of  the 
undersigned,  guardian  of  said  minor. 


633  RE.M.   ESTATE   SOLD   BY    GUARDIAN.  §  891 

INVENTORY. 

NO.  REAL  ESTATE.  APP.  VALUE. 

(Here  describe  real  estate.)  Dollars.     Cents. 

PERSONAL  PROPERTY. 

NO.  REAIi  ESTATE.  APP.   VALUE. 

(Here  describe   same.)  Dollars.     Cents. 

BONDS,  ]\IORTGAGES,  NOTES  AND  ACCOUNTS. 

BY  WHOM  OWING.      DATE.      AM't.      CREDITS.      WHEN  DUE.     APP.  VAL. 

Month,  Day,  Year.  Month,  Day,  Year. 

(Here  describe  same.) 
Total  appraised  value  of  said  estate, 

Dated  this day  of ,  19—. 


Guardian. 

Sec.  891.    Form  for  the  oath  of  guardian  to  inventory  and 
appraisement. 

State  of  Oklahoma,  County,  ss. : 

I,  ,  guardian  of  the  above  named  minor,  being  duly 

sworn,  on  oath  state  that  the  above  inventory  by  me  made  and 
subscribed,  is  a  full  and  correct  inventory  of  all  the  property 
of  said  estate,  both  real  and  personal,  that  has  come  to  my 
possession  or  knowledge.     So  help  me  God. 


Guardian. 

Subscribed  and  sworn  to  before  me  this day  of 

A.  D.  19—. , 

[Seai..]  Judge  of  the  County  Court. 


§§  892-894  merwine's  trlvl  of  title  to  land.  634 

Sec.  892.     Form  for  the  order  appointing  appraisers. 

In  the  County  Court  of County,  State  of  Oklahoma. 

In  the  Matter  of  the  Estate 

of ,  a  Minor.  No. . 


Now,  on  this day  of ,  19 — ,  it  is  hereby  ordered 

that  ,  and  ,  of  County,  State  of 

Oklahoma,  be,  and  they  are  hereby,  appointed  appraisers  of  the 

estate  of ,  a  minor,  \\dthin  the  county  of ,  in  said 

State,  and  are  hereby  directed  to  view  and  appraise  said  estate 
and  make  return  of  said  appraisement  as  provided  by  law. 


Judge  of  the  CounUj  Court. 
Sec.  893.    Form  for  certificate  of  true  copy. 

State  of  Oklahoma, County,  ss. : 

I, ,  of  the  county  court  in  and  for  the  county  and  State 

aforesaid,  do  hereby  certify  the  above  and  foregoing  to  be  a 
true  copy  of  the  original  thereof  as  the  same  appears  of  record 
in  my  office. 

In  Witness  "Whereof,  I  have  hereunto  set  my  hand  and 
affixed  the  seal  of  said  court,  this day  of ,  19 — . 


of  the  County  Court. 

Sec.  894.    Form  for  the  oath  of  appraisers. 

State  of  Oklahoma, County,  ss. : 

I  do  solemnly  swear  that  I  will  truly,  honestly  and  impar- 
tially appraise  the  property  exhibited  to  me  as  belonging  to  the 
minor  above  named,  according  to  the  best  of  my  knowledge  and 
ability,  and  that  I  am  disinterested  in  the  estate  of  said  minor. 
So  help  me  God.  , 


Appraisers. 

Subscribed  and  sworn  to  before  me,  this day  of 

A.  D.  19—.  , 

[Seal.]  Judge  of  the  County  Court. 


635  REAL   ESTATE   SOLD   BY   GUARDIAN.  §§  895-897 

Sec.  895.     Form  for  the  certificate  of  appraisers. 

We,  the  undersigned  appraisers,  do  hereby  certify  that,  after 
taking  the  foregoing  oath  by  us  subscribed,  we  appraised  all  the 
property  described  and  mentioned  in  the  above  inventory,  which 
has  been  exhibited  to  us,  setting  down  opposite  each  item  of  said 
inventory,  in  figures,  the  value  thereof  in  money,  as  by  us  de- 
termined. 

Witness  our  hands  this day  of ,  A.  D.  19 — . 


Appraisers. 


Sec.  896.     Form  for  the  bill  of  appraisers. 

Estate  of ,  a  Minor. 

To , and ,  Appraisers,  Dr. 

One  day  each,  three  days,  at  $ per  day,  each,  $- 

Necessary  disbursements  as  follows : $- 


Sec.  897.     Form  for  the  oath  of  appraisers  to  said  bill. 

State  of  Oklahoma, County,  ss. : 

, and ,  the  appraisers  within  named,  being 

duly  sworn,  each  for  himself,  says  that  the  foregoing  bill  of 
items  is  correct  and  just,  and  that  the  services  have  been  duly 
rendered  and  expenses  incurred  as  therein  set  forth. 


Appraisers. 

Subscribed  and  sworn  to  before  me,  this day  of 

A.  D.  19—.  , 

[Seal.]  Notary  Public. 

My  commission  expires  . 


§  898  merwine's  trial  of  title  to  land.  636 

Sec.  898.    Form  for  petition  to  sell  real  estate  by  guardian. 

State  of  Oklahoma, County,  ss. : 

In  the  County  Court. 
In  the  Matter  of  the  Guardianship 

of ,  a  ]\Iinor.  No.  . 

PETITION  TO  SELL  REAL  ESTATE. 

Comes  now  ,  as  the  guardian  of  ,  a  minor,  and 

shows  to  the  court  the  condition  of  the  estate  of  the  above  named 
ward,  to-wit: 

The  personal  property  of  said  ward  consists  of  (Here  describe 

it),  of  the  approximate  value  of  $ ;  that  the  annual  income 

therefrom  is  approximately  $ . 

That  said  ward  owns  the  following  described  real  estate  of  the 
approximate  value  of  $ ,  to-wit:  (Here  describe  real  es- 
tate) — — ;  that  the  annual 

income  therefrom  is  approximately  $ ;  that  said  real  estate 

is  incumbered  to  the  amount  of  $ ,  with  an  annual  interest 

charge  of  $ ;  that  the  annual  expense  chargeable  against 

the  estate  of  said  ward  for  maintenance  and  education  is  ap- 
proximately $ ;  that  it  is  necessary  that  the  hereinafter 

described  portion  of  said  real  estate  should  be  sold  for  the  fol- 
lowing reasons,  to-wit:  . 

That  the  next  of  kin  and  persons  interested  in  the  estate  of 
said  ward,  together  with  their  respective  places  of  residence,  are 
as  follows  : . 

Wherefore,  petitioner  prays  the  court  that,  upon  hearing 
had  hereon,  he  be  authorized  to  sell  all  the  interest  of  said  minor 

in    (Here  describe  real  estate  to  be  sold)    in  County, 

Oklahoma.    Also  (Here  describe  real  estate  to  be  sold)  in 

County,  Oklahoma,  at  public  or  private  sale  as  shall  be  deemed 
most  beneficial  and  for  the  best  interest  of  said  ward. 


Petitioner. 


637  REAL  ESTATE  SOLD  BY  GUARDIAN.        §§  899,  900 

Sec.  899.    Form  for  oath  to  petition. 

State  of  Oklahoma,  County,  ss. : 

,  petitioner  above  named,  being  duly  sworn,  says  that 

he  has  read  the  foregoing  petition  and  knows  the  contents 
thereof,  and  the  same  is  true  of  his  own  knowledge,  except  the 
matters  therein  stated  to  be  on  information  and  belief,  and  as 
to  those  matters  be  believes  them  to  be  true. 


Subscribed  and  sworn  to  before  me,  this day  of 

19—.  


[Seal.]  Notary  Public. 

My  commission  expires  . 

Sec.  900.    Form  for  order  for  hearing  petition  to  sell  real 
estate  by  guardian. 

State  of  Oklahoma, County,  ss. : 

In  the  County  Court. 
In  the  Matter  of  the  Guardianship 

of ,  a  Minor.  No. . 

ORDER   FOR   HEARING  PETITION   TO    SELL 
REAL    ESTATE. 

Now,  on  this  day  of  ,  19 — ,  comes  ,  as 

guardian  of  the  estate  of  the  above  named  ward,  having  filed 
herein  his  petition  for  the  sale  of  the  real  estate  of  said  ward  for 
the  reasons  in  said  petition  stated. 

It  is   ordered  that  said  petition  be,  and  hereby  is,   set  for 

hearing  on  the  day  of  ,  A.  D.   19 — ,  at  

o'clock,  —  m.,  at  which  time  the  next  of  kin  and  all  persons 
interested  in  the  estate  of  said  ward  are  required  to  appear 
and  show  cause,  if  any  they  have,  why  an  order  should  not  be 
granted  for  the  sale  of  so  much  of  the  real  estate  of  said  ward 
as  is  necessary  for  the  reasons  in  said  petition  stated. 

It  is  further  ordered,  that  copies  of  this  order  be  posted  in 
three  public  places  in  this  county,  one  of  which  shall  be  at  the 
courthouse  where  the   hearing  is   to  be   held,   and  personally 


§§  901,  902        merwine's  trial  of  title  to  land.  638 

served  on  or  mailed,  with  the  postage  prepaid,  to  the  next  of 
kin  of  the  ward  and  all  persons  interested  in  the  estate  of  said 
ward,  and  that  a  copy  of  this  order  be  published  for  two  suc- 
cessive weeks  in  the  of  ,  County,  Okla- 
homa.                                                 , 

[Seal.]  Judge  of  the  County  Court. 

Dated  this day  of ,  19 — . 

Sec.  901.     Form  for  waiver  of  notice  of  hearing  petition  by 
next  of  kin  and  parties  interested. 

State  of  Oklahoma,  County,  ss. : 

In  the  County  Court. 
In  the  Matter  of  the  Guardianship 

of ,  a  ]\rinor.  No. . 

"We,  the  undersigned,  next  of  kin  and  all  persons  interested 
in  the  estate  of  the  above  named  ward,  hereby  waive  notice  of 
hearing  petition  to  sell  the  following  described  real  estate  of 
said  ward,  to-wit:  (Here  describe  same),  and  consent  that  said 
order  of  sale  be  made  forthwith  as  prayed  for,  and  without 
notice  to  us. 

Witness  our  hands  this day  of ,  19 — . 


Sec.  902.     Form  for  proof  of  posting  and  mailing  the  notices. 

State  of  Oklahoma,  County  of  Okmulgee,  ss. : 

,  of  lawful  age,  being  first  duly  sworn,  upon  his  oath 

says  that  on  the  day  of  ,   19 — ,  he   personally 

served  true  copies  of  the  within  notice  upon  the  following  per- 
sons, to-wit:  ,  they  being  the  next  of 

kin  and  all  persons  interested  in  the  estate  of  said  ward,  by 
mailing  a  copy  thereof,  with  postage  prepaid,  at  their  usual 
postoffice  address,  and  by  posting  true  copies  of  the  same  in 


639  REAL  ESTATE  SOLD  BY  GUARDIAN.  §  904 

three  public  places  in  the  county,  one  at  the  courthouse  where 

the  hearing  is  to  be  held,  one  at  ,  and  one  at ,  all 

in County,  Oklahoma. 


Subscribed  and  sworn  to  before  me  this day  of 

19—. 


Clerk  of  the  County  Court. 


Sec.  904.    Form  for  the  affidavit  of  publication. 

State  of  Oklahoma,  County,  ss. : 

^  of  lawful  age,  being  first  duly  sworn,  deposeth  and 

saith  that  he  is ,  of  the  ,   a  weekly  newspaper, 

printed  and  published  in  ,  County  and  State  of 

Oklahoma,  and  that  an  order  for  hearing  petition,  of  which  the 
attached  is  a  true  and  correct  copy,  was  printed  and  published 
in  the  regular  and  entire  issues  of  said for  two  consecu- 
tive weeks,  the  first  publication  being  made  on  the  day 

of  ,   A.   D.   19—,   and  the  last   on  the  •-  day  of 

,  A.  D.  19—. 

And,  further,  affiant  says  that  the  said  newspaper  has  been 

continuously    and   uninterruptedly    published    in   said   

County  during  the  period  of  fifty-two  consecutive  weeks  prior 
to  the  first  publication  of  the  attached  notice. 

Subscribed  and  sworn  to  before  me,  this day  of , 

A.  D.  19—. ' 

r Se  vl  1  Notary  Public. 

My  commission  expires  • 


§905  merwine's  trial  of  title  to  land.  640 

Sec.  905.    Form  for  appointment  of  appraisers  and  appraise- 
ment of  land  before  sale  at  private  sale. 

In  the  County  Court  of County,  State  of  Oklahoma. 

In  the  Matter  of  the  Estate 

of ,  a  ]\Iinor.  No. . 


ORDER  APPOINTING  APPRAISERS. 

Now,  on  this day  of ,  19—,  it  is  hereby  ordered 

that  ,  and  ,  of  County,  Oklahoma, 

be,  and  they  are  hereby,  appointed  appraisers  to  appraise  the 

following  described  real  estate  belonging  to  the  estate  of , 

a  minor,  located  in County,  Oklahoma,  and  described  as 

follows,  to-wit:  (Here  describe  the  land  to  be  appraised),  and 
are  hereby  directed  to  view  and  appraise  said  real  estate,  and 
make  return  of  said  appraisement  as  provided  by  law. 


Judge  of  the  County  Court. 


OATH    OF    APPRAISERS. 

State  of  Oklahoma,  County,  ss. : 

I  do  solemnly  swear  that  I  will  truly,  honestly  and  impartially 
appraise  the  real  estate  mentioned  and  described  in  the  order  of 
court  above  mentioned,  according  to  the  best  of  my  knowledge 
and  ability.    So  help  me  God. 


Subscribed  and  sworn  to  before  me,  this day  of 

19- 


[Seal.]  Clerk  of  the  County  Court. 


641  REAL  ESTATE  SOLD  BY  GUARDIAN.  §  905 

APPRAISEMENT  OF  REAL  ESTATE  BEFORE  SALE. 
In  the  Matter  of  the  Estate  No.  . 


of ,  a  Minor.  In  the  County  Court. 

We,  the  undersigned  appraisers  appointed  to  appraise  the  real 

estate  of  ,  a  minor,  mentioned  and  descri])ed  herein,  do 

most  respectfully  certify  that,  having  first  taken  and  subscribed 
the  oath  required  by  law,  we  do  make  the  following  appraise- 
ment of  said  lands  at  their  cash  value,  that  is  to  say:  (Here 
describe  the  land)  at  (appraised  value)  ,  at  . 

Respectfully  submitted  this  day  of  ,  19 — . 


Appraisers. 
Estate  of ,  a  minor. 

To ,  Appraisers,  Dr. 

To  compensation  for  services  in  appraising  the  above  described 
real  estate,  as  follows : 

days,  at  $ per  day,  each $ • 

Necessary  expenses  and  disbursements  as  follows : 

$ . 

$ . 

State  of  Oklahoma,  County,  ss. : 

, and ,  the  appraisers  above  named,  being 

duly  sworn,  each  for  himself,  says  that  the  foregoing  bill  is  cor- 
rect and  just,  and  that  the  services  have  been  duly  rendered  and 
expenses  incurred  as  therein  set  forth. 


Subscribed  and  sworn  to  before  me,  this day  of 

19—. 


[Seal.]  Clerk  of  the  County  Court. 


§  907  MERWINE  'S   TRIAL   OF   TITLE   TO   LAND.  642 

Sec.   907.    Form  for  the  decree   of  sale   of  real   estate  by 
guardian. 

State  of  Oklahoma, Coimty,  ss. : 

In  the  County  Court. 

In  the  Matter  of  the  Guardianship 

of Scott,  a  ]\Iinor.  No. . 

Now,  on  this day  of ,  A.  D.  19—,  there  coming 

on  for  hearing  the  petition  of ,  as  the  guardian  of , 

a  minor,  for  an  order  authorizing  the  sale  of  the  real  estate 
described  in  said  petition;   and  said  petitioner,   appearing  in 

person  and  by  his  attorneys,  ,  and  no  person  or  persons 

appearing  in  opposition  to  said  petition,  and  it  being  proven  to 
the  satisfaction  of  the  court  that  notice  of  this  hearing  has  been 
given  for  the  time  and  in  the  manner  prescribed  by  law  by 
publication  of  a  copy  of  said  order  to  hear  for  two  weeks  in  the 

,  a  legal  publication  of ,  Oklahoma,  the  first  of  such 

publications  appearing  in  the  issue  of ,  19 — ,  and  the  last 

appearing  in  the  issue  of  ,  19 — ;  and  by  posting  true 

copies  of  said  order  in  three  of  the  most  public  places  in  said 
county  and  State,  one  of  which  was  at  the  front  door  of  the 

courthouse,  where  the  hearing  was  held,  in  ,  Oklahoma, 

and  by  mailing  copies  to  all  the  persons  interested  in  the 
estate,  and  next  of  kin  of  said  ward,  no  matter  where  located; 
and  said  matter  being  submitted  to  the  court;  and  upon  due 
examination  and  consideration  of  said  petition,  and  after  a 
full  hearing  upon  the  same,  and  upon  due  consideration  of 
the  proofs  offered  in  said  matter,  the  court  finds  that  the  sale 
of  the  real  estate  belonging  to  said  ward  mentioned  in  said 
petition  and  hereinafter  described,  is  necessary  for  the  purpose 
of  (Here  state  reasons  for  said  sale),  and  is  fOr  the  best  interest 
of  said  ward. 

It  is  Therefore  adjudged  and  decreed  by  the  court  that  the 

said ,  as  guardian  of  the  estate  of  said  above  named  ward, 

be,  and  is  hereby,  authorized  to  sell  in  one  parcel,  or  in  separate 
parcels  or  subdivisions,  as  the  said  guardian  shall  judge  most 
beneficial  to  said  estate,  at  private  sale  to  the  highest  bidder,  the 
following  described  real  estate,  to-mt :  *(Here  describe  same) 


643  REAL  ESTATE  SOLD  BY  GUARDIAN.  §  908 

in Count}^  Oklahoma;  and  also  (Here  describe  real  es- 
tate)   in   County,    Oklahoma,   on   the   following    terms, 

to-wit :  Cash  in  hand,  subject  to  confirmation  by  the  county 
court. 

It  is  further  ordered  that  notice  of  the  time  and  place  of 
such  sale  be  given  hy  publication  for  two  successive  weeks  in 

the  ,  of  ,  Oklahoma,  and  the  ,  of  , 

Oklahoma,  and  by  posting  notice  as  required  by  law. 

It  is  further  ordered  that,  before  making  such  sale,  said 
guardian  execute  an  additional  bond  to  the  county  judge  of  said 

county  of  ,   State   of   Oklahoma,    in   the   penal   sum   of 

$ ,  conditioned  as  required  by  law. 


[Seal.]  Judge  of  the  County  Court. 

Sec.  908.     Form  for  notice  of  sale  of  real  estate. 

In  the  Matter  of  the  Guardianship 

of  ,  a  ]\Iinor. 

Notice  is  hereby  given,  that  in  pursuance  of  an  order  of  the 

county  court  of  the  county  of ,  State  of  Oklahoma,  made 

on  the day  of  May,  19 — ,  the  undersigned,  guardian  of 

the  estate  of ,  a  minor,  will  sell  at  the  county  courtroom 

in  ,  Oklahoma,  to  the  highest  bidder,  subject  to  con- 
firmation by  said  court,  on  ,  the  — day  of  , 

A.  D.   19 — ,   at  o'clock,   —  m.    (or   within  six  months 

thereafter),  at  private  sale,  all  the  right,  title  and  interest  of 

said  ,  a  minor,  in  and  to  the  following  described  real 

estate,  to-wit:  ,  in  County, 

Oklahoma ;  also in County, 

Oklahoma. 

Said  real  estate  will  be  sold  on  the  following  terms  and  con- 
ditions, to-wit:  Cash  in  hand,  subject  to  confirmation  by  the 
county  court. 

Bids  for  the  purchase  thereof  must  be  in  writing  and  must  be 
filed  in  the  county  court  of County,  Oklahoma,  or  mailed 


§§909,910        merwine's  trial  of  title  to  land.  644 

to ,  attorneys  for  the  guardian,  at  ,  Oklahoma,  or 

delivered  to  the  guardian  personally. 
Dated  the day  of ,  19 — . 


Guardian. 


Attorneys  for  Guardian. 


Sec.  909.    Form  for  the  affidavit  of  posting  notice. 

State  of  Oklahoma,  County,  ss. : 

,  being  duly  sworn,  says  that  on  the  day  of 

,  19 — ,  he  posted  true  copies  of  the  within  notice  in  three 


public  places  in County,  as  follows :  one  at  the  front  door 

of  the  courthouse,  ,   Oklahoma;   one  at  ,  , 

Oklahoma,  and  one  at  ,  ,  Oklahoma. 

Subscribed  and  sworn  to  before  me,  this day  of , 

A.  D.  19—.  , 


[Seal.]  Clerk  of  the  County  Court. 

Sec.   910.     Form   for  the   notice   of   sale   of  real   estate   by- 
guardian. 

In  the  Matter  of  the  Guardianship 

of ,  a  Minor. 

Notice  is  hereby  given  in  pursuance  of  an  order  of  the  county 

court  of  the  county  of ,  State  of  Oklahoma,  made  on  the 

day  of  ,  19 — ,  the  undersigned  guardian  of  the 

estate  of ,  a  minor,  will  sell  at  the  county  courtroom,  in 

■ ,  Oklahoma,  to  the  highest  bidder,  subject  to  confirma- 
tion by  said  court,  on  ,  the  day  of  ,  A.  D. 

19 — ^  at  o'clock,  —  m.  (or  within  six  months  there- 
after), at  private  sale,  all  the  right,  title  and  interest  of  said 

,  a  minor,  in  and  to  the  following  described  real  estate, 

to-wit:  ,  in  County,  Okla- 
homa;   also ,    in    County, 

Oklahoma. 


645  REAL   ESTATE    SOLD   BY   GUARDIAN.  §§911,912 

Said  real  estate  will  be  sold  on  the  following  terms  and  con- 
ditions, to-wit:  Cash  in  hand,  subject  to  confirmation  by  the 
county  court. 

Bids  for  the  purchase  thereof  must  be  in  writing  and  must 

be  filed  in  the  county  court  of County,  Oklahoma,  or  be 

mailed  to ,  attorneys  for  guardian,  at  ,  Oklahoma, 

or  delivered  to  the  guardian  personally. 


Guardian. 


Attorneys  for  Guardian. 


Sec.  911.     Form  for  affidavit  of  posting  notices. 

State  of  Oklahoma,  County,  ss. : 

,  being  duly  sworn,  says  that  on  the  day  of 

,  19 — ,  he  posted  true  copies  of  the  within  notice  in  three 

public  places  in County,  as  follows :  one  at  the  front  door 

of  the  courthouse,  ,  Oklahoma ;  one  at  ,  , 

Oklahoma,  and  one  at  ,  ,  Oklahoma. 


Subscribed  and  sworn  to  before  me  this day  of 

A.  D.  19—.  


[Seal.]  Clerk  of  the  County  Court. 

Sec.  912.     Form  for  publication  of  notice  of  sale  of  real  estate. 

(First  published  in ,  ,  19 — .) 

NOTICE   0¥  SALE   OF  REAL  ESTATE   BY  GUARDIAN. 

In  the  JMatter  of  the  Guardianship 

of  ,  a  INIinor. 

Notice  is  hereby  given  that,  in  pursuance  of  an  order  of  the 

county  court  of  the  county  of ,  State  of  Oklahoma,  made 

on  the day  of ,  19 — ,  the  undersigned  guardian  of 

the  estate  of ,  a  minor,  will  sell  at  the  county  courtroom 

in  ,  Oklahoma,  to  the  highest  bidder,  subject  to  con- 
firmation by  said  court,  on  ,  the  •  day  of  , 


§  913  MERWINE  'S   TRIAL    OF    TITLE   TO   LAND.  646 

A.   D.   19 — ,   at  o'clock,   —  m.    (or   within   six   months 

thereafter),  at  private  sale,  all  the  right,  title  and  interest  of 

said  ,  a  minor,  in  and  to  the  following  described  real 

estate,  to-wit:    (Here  describe   real  estate)    in  County, 

Oklahoma;  also  (Here  describe  real  estate)   in  County, 

Oklahoma, 

Said  real  estate  will  be  sold  on  the  following  terms  and  con- 
ditions, to-wit :  Cash  in  hand,  subject  to  confirmation  by  the 
county  court. 

Bids  for  the  purchase  thereof  must  be  in  writing  and  must  be 

filed  in  the  county  court  of County,  Oklahoma,  or  mailed 

to  ,  attorneys  for  guardian,  ,  Oklahoma,  or  de- 
livered to  the  guardian  personally. 

Dated  the  day  of ,  19 — . 


Guardian. 


Attorneys  for  Guardian. 

Sec.  913.     Form  for  the  proof  of  legal  notice. 

State  of  Oklahoma,  County,  ss. : 

,  being  duly  sworn,  deposes  and  says  that  he  is  the 

,  of  the  ,  a  weekly  newspaper  printed  and  pub- 


lished in  ,  in  said  county,  which  newspaper  has  been  a 

legal  publication  with  a  hona  fide  subscription  list  and  general 

circulation  in  County   for  fifty-two   consecutive   weeks 

next  preceding  the  date  of  the  first  publication  of  the  notice 
hereto  attached. 

That  a  notice,  of  which  the  attached  is  a  true  copy,  was  pub- 
lished once  each  week  for  three  consecutive  weeks  in  said  news- 
paper, the  same  being  in  the  regular  issues  of  the  following 
dates : , and ,  19 — . 


Subscribed  and  sworn  to  before  me  by ,  the  ,  of 

the  ,  this  day  of  ,  19 — . 


[Seal.]  *      Notary  Public. 

My  commission  expires  . 


647  REAL   ESTATE    SOLD   BY   GUARDIAN.  §§914,915 

Sec.  914.     Form  for  the  legal  notice  of  sale  of  real  estate  by 
guardian. 

In  the  Matter  of  the  Guardianship 
of  ,  a  Minor. 

NOTICE  OF  SALE  OF  REAL  ESTATE. 

Notice  is  hereby  given  in  pursuance  of  an  order  of  the  county 

court  of  the  county  of ,  State  of  Oklahoma,  made  on  the 

day  of  ,  19 — ,  the  undersigned  guardian  of  the 

estate  of  ,  a  minor,  will  sell  at  the  county  courtroom  in 

,  Oklahoma,  to  the  highest  bidder,  subject  to  confirma- 
tion by  said  court,  on  ,  the day  of  ,  A.  D. 

19 — ,  at  o'clock,  —  m.  (or  within  six  months  there- 
after), at  private  sale,  all  the  right,  title  and  interest  of  said 

,  a  minor,  in  and  to  the  following  described  real  estate, 

to- wit:    (Here   describe   same),   in  County,   Oklahoma; 

also  (Here  insert  description),  in  County,  Oklahoma. 

Said  real  estate  will  be  sold  on  the  following  terms  and  con- 
ditions, to-wit:  Cash  in  hand,  subject  to  confirmation  by  the 
county  court. 

Bids  for  the  purchase  thereof  must  be  in  writing  and  must 

be  fi-led  in  the  county  court  of  County,  Oklahoma,  or 

mailed  to ,  attorneys  for  guardian,  at  ,  Oklahoma, 

or  delivered  to  the  guardian  personally. 

Dated  the day  of ,  19—. 


Guardian. 


Attorneys  for  Guardian. 
First  published ,  19 — . 

Sec.  915.     Form  for  the  proof  of  publication. 

State  of  Oklahoma,  County,  ss. : 

,   of  lawful  age,  being  duly  sworn  according  to  law, 

states  that  he  is  the  ,  of  ,  a  weekly  newspaper, 

printed  and  published  at  ,  county  of  ,  and  State 


§  916  merwine's  trial  of  title  to  land.  648 

of  Oklahoma,  of  general  circulation  in  said  county,  which  said 
newspaper  has  been  published  continuously  for  more  than  fifty- 
two  consecutive  issues  next  preceding  the  date  of  the  first  pub- 
lication of  the  notice  hereto  attached,  and  that  the  notice  of 
sale  of  real  estate,  a  copy  of  which  is  hereto  attached,  was  duly 

printed  and  published  in  the  regular  issues  of  said  for 

three  consecutive  weeks,  the  first  insertion  being  on  the  

day  of ,  19 — ,  and  the  last  insertion  being  on  the  • 

day  of  ,   19—.  . 

Printer's  fees,  $ .  •. 

Subscribed  and  sworn  to  before  me,  this day  of , 

19—.  , 


[Seal.]  Notary  Public. 

My  commission  expires  . 

Sec.  916.     Form  for  the  additional  bond  of  guardian. 

State  of  Oklahoma,  County,  ss. : 

In  the  County  Court. 
In  the  Matter  of  the  Guardianship 

of ,  a  ]\Iinor.  No. . 

Know  All    ■Men  by  These  Presents,  that  we,  ,   as 

principal,   and  and  ,   as  sureties,   are  held   and 

firmly  bound  unto  the  county  judge  of County,  State  of 

Oklahoma,  in  the  penal  sum  of  $ ,  lawful  money  of  the 

United  States,  for  the  payment  of  which,  well  and  truly  to  be 
made,  we  bind  ourselves,  our  heirs,  executors,  administrators  and 
assigns,  jointly  and  severally,  by  these  presents. 

The  condition  of  the  above  obligation  is  such,  that,  whereas, 

on  the day  of ,  19 — ,  an  order  was  entered  by  the 

county  court  of County,  State  of  Oklahoma,  authorizing 

the  above  named  principal,  as  guardian  of  the  estate  of , 

a  minor,  to  sell  certain  real  estate  belonging  to  said  estate,  and 

providing  therein,  that  said  ,  guardian,  should  give  an 

additional  bond  in  the  above  named  sum,  before  making  such 
sale. 


649  REAL   ESTATE    SOLD    BY    GUARDIAN.  §§917,918 

Now,  Therefore,  if  the  said  ,  as  such  guardian,  shall 

faithfully  execute  the  duties  of  such  trust  according  to  law, 
then  this  obligation  to  be  void,  otherwise  to  remain  in  full  force 
and  effect. 

In  Witness  Whereof,  we  have  hereunto  subscribed  our 
names  this day  of ,  19 — . 


Sec.  917.     Form  for  the  oath  of  sureties. 

State  of  Oklahoma,  County,  ss. : 

The  undersigned,  sureties  on  the  foregoing  bond,  being  duly 
sworn,  on  oath  each  for  himself,  says :  I  am  a  resident  house- 
holder and  freeholder  within  the  State  of  Oklahoma,  and  ha\e 
property  within  said  State  worth  over  and  above  all  my  just 
debts  and  liabilities,  exclusive  of  property  exempt  from  execu- 
tion, the  sum  set  out  and  stated  below,  that  is  to  say; 

I,  ,  am  worth  the  sum  of  $ . 

I,  ,  am  worth  the  sum  of  $ . 


Subscribed  and  sworn  to  before  me,  this day  of 

19—.  


[Seal.]  Judge  of  the  County  Court. 

I  hereby  approve  the  above  bond,  this  day  of  , 

19-.  , 

Judge  of  the  County  Court. 

Sec.  918.     Form  for  the  return  of  sale  of  real  estate. 

State  of  Oklahoma,  County,  ss. : 

In  the  County  Court. 
In  the  Matter  of  the  Estate 

of ,  a  Minor.  No.  . 

Comes  now  ,  as  guardian  of  the  estate  of  ,  a 

minor,  and  shows  to  the  court  that,  pursuant  to  the  decree  of 
the  court  entered  herein  on  the  day  of  ,   19 — , 


§  919  merwine's  trial  of  title  to  land.  650 

authorizing  him,  as  such  guardian,  to  sell  the  interests  of  said 
minor  in  the  real  estate  belonging  to  said ,  a  minor,  here- 
inafter described.  He  caused  public  notice  to  be  given  as 
provided  by  law  and  said  order  by  posting  notices  and  by  pub- 
lication, that  he  would  sell  said  ward's  interest  in  said  land  at 

private  sale  to  the  highest  bidder,  on  ,  19 — ,  or  within 

six  months  thereafter,  and  that  on  the  day  of  , 

19 — ,  he  sold  said  real  estate,  to-wit :    Said  ward's  interest  in 

,    in    County,    Oklahoma,    to 

,  for  the  sum  of  $ ,  on  the  following  terms,  to-wit : 


Cash,  subject  to  confirmation  by  the  county  court. 

That  said  was  the  highest  bidder  therefor,  and  said 

sum  of  $ the  highest  and  best  sum  bid,  and  that  said  sum 

of  $ is  not  disproportionate  to  the  value  of  said  property. 

"Wherefore,  said  ,  guardian,  prays  the  court  to  enter 

its  order  setting  said  return  for  hearing,  and  that,  upon  said 
hearing  being  had,  he  be  directed  to  execute  a  proper  convey- 
ance thereof  to  said  purchaser. 

Dated  the day  of ,  19 — . 


Guardian. 


Sec.  919.     Form  for  oath  of  guardian  to  return. 

State  of  Oklahoma, County,  ss, : 

,  being  duly  sworn,  on  oath  says  that  he  is  the  guardian 

above  named,  and  that  he  has  read  the  above  and  foregoing  re- 
turn, and  knows  the  contents  thereof,  and  that  the  statements 
therein  contained  are  true. 


Subscribed  and  sworn  to  before  me,  this day  of 

19—.  


[Seal.]  Clerk  of  the  County  Court. 


651  REx\L   ESTATE   SOLD   BY    GUARDIAN.  §§920,921 

Sec.  920.     Form  for  order  for  hearing  return  of  sale  of  real 
estate. 

State  of  Oklahoma, County,  ss. : 

In  the  County  Court. 
In  the  Matter  of  the  Guardianship 

of ,  a  Minor.  No. . 

Now,  on  this day  of ,  19 — , ,  as  the  guard- 
ian of  the  estate  of ,  a  minor,  having  made  and  filed  herein 

a  return  of  proceedings  had  under  order  of  sale  of  real  estate 

of  said  estate,  made  and  entered  herein  on  the  day  of 

,  19 — ,  and  a  hearing  on  said  return  being  asked  for  in 

said  return  upon  a  day  before  the  first  day  of  the  next  term 
after  the  sale  reported  in  said  return. 

It  is  ordered  that  said  return  be,  and  hereby  is,  set  for  hearing 

on  the day  of ,  19 — ,  at o'clock,  —  m.,  and 

that  notice  of  the  time  and  place  of  said  hearing  be  given  by 
posting  notices  thereof  in  three  of  the  most  public  places  in  said 
county,  at  least  ten  full  days  before  the  date  of  hearing. 


[Seal.]  Judge  of  the  County  Court. 

Sec.  921.     Form  for  the  notice  of  hearing  return  of  sale  of 
real  estate. 

State  of  Oklahoma, County,  ss. : 

In  the  County  Court. 
In  the  Matter  of  the  Guardianship 

of ,  a  jMinor.  No. . 

Notice  is  hereby  given  that  ,  the  duly  appointed  and 

qualified  guardian  of  the  estate  of ,  a  minor,  has  returned 

and  presented  for  confirmation,  and  filed  in  said  court  his  return 
of  the  sale  of  the  following  described  real  estate  of  said  minor, 

to-wit:    Said  ward's  interest  in  ,  in 

County,  Oklahoma,  to  ,  for  the  sum  of  $ , 

and  that  ,  the  day  of  ,  19—,  at  o'clock, 

in  the   ^noon  of  said  day,   at  the  county   courtroom  in 


§§922,  L)23          merwine's  trial  of  title  to  land.  652 

— ,  in  said  county  of  ,  has  been  duly  appointed  by 


said  court  for  hearing  said  return,  at  which  time  any  person 
interested  in  said  estate  may  appear  and  file  his  exceptions  in 
writing  to  said  return  and  contest  the  same,  and  are  hereby 
referred  to  said  return  for  further  particulars. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and 
affixed  the  seal  of  said  court,  this day  of ,  19 — , 


[Seal.]  Judge  of  the  County  Court. 

Sec.  922.     Form  for  aflfidavit  of  posting  notices  of  hearing 
return. 

State  of  Oklahoma, County,  ss. : 

I, ,  of  lawful  age,  being  duly  sworn,  on  oath,  say  that 

on  the day  of  ,  A.  D.  19 — ,  T  posted  correct  and 

true  copies  of  the  foregoing  notice  in  three  of  the  most  public 

places  in  said  County,  as  follows,  to-wit :    one  at  the 

front  door  of  the  courthouse,  ,  Oklahoma,  one  at  , 

,  Oklahoma,  and  one  at ,  ,  Oklahoma. 


Subscribed  and  sworn  to  before  me,  this day  of 

19—.  


[Seal.]  Judge  of  the  County  Court. 

Sec.  923.     Form  for  the  order  confirming  sale  of  real  estate 
by  guardian. 

State  of  Oklahoma,  County,  ss. : 

In  the  Countj''  Court. 
In  the  Matter  of  the  Guardianship 

of ,  a  ]Minor.  No. . 

Now,  on  this day  of ,  19—,  there  coming  on  for 

hearing  the  return  of  sale  made  by  ,  as  the  guardian  of 

the  estate  of ,  a  minor,  and  said ,  guardian,  appear- 
ing in  person  and  by  attorneys,  ,  and  it  appearing  that 

notice  of  this  hearing  has  been  given  by  posting  notices  thereof 
in  three  of  the  most  public  places  in County,  Oklahoma, 


653  REzVL   ESTATE    SOLD    BY    GUARDIAN,  §  923 

on  the  day  of  ,  19 — ,  and  there  being  no  tes- 
timony oifered  in  opposition  to  this  confirmation,  and  the 
court,  having  examined  said  return  and  having  heard  and  con- 
sidered the   evidence   of   witnesses   offered  in  support   of  said 

return  of  sale  by  the  guardian  herein,  ,  and  being  fully 

advised  in  the  premises,  finds : 

That,  in  pursuance  of  said  order  of  sale,  said  ,  guard- 
ian, on  the day  of ,  19 — ,  sold  the  portion  of  the 

real   estate  of  said   estate,   described   as   follows,   to-wit :    Said 

ward's    interest    in    ,    in    Okmulgee 

County,  Oklahoma,  at  private  sale,  to  ,  upon  the  follow- 
ing terms,  to-wit : 

For  the  sum  of  $ ,  payable  as  follows:    Cash  in  hand, 

subject  to  confirmation  by  the  county  court  of  County, 

Oklahoma. 

That  said  sale  was  made  after  due  notice  as  prescribed  by  said 
order  of  sale ;  that  said  purchaser  was  the  highest  bidder  there- 
for, and  said  sum  the  highest  and  best  sum  bid;  that  said  sale 
was  legally  made  and  fairly  conducted;  that  said  sum  is  not 
disproportionate  to  the  value  of  the  property  sold,  and  that  a 
sum  exceeding  such  bid  at  least  ten  (10)  per  cent.,  exclusive  of 
the  cost  of  a  new  sale,  cannot  be  obtained,  and  that  the  said 

,  guardian,  in  all  things  proceeded  and  conducted  and 

managed  such  sale  as  required  by  the  statute  in  such  cases  made 
and  provided,  and  as  by  said  order  of  sale  required  and  directed. 

It  is  Therefore  ordered,  adjudged  and  decreed  by  the  court, 
that  the  said  sale  be,  and  the  same  is  hereby,  confirmed  and 

approved  and  declared  valid,  and  the  said  ,  guardian,  is 

directed  to  execute  to  said  purchaser  proper  and  legal  convey- 
ance of  said  real  estate. , 

[Seal..]  Judge  of  the  County  Court. 


CHAPTER   XV. 
HOMESTEAD  AND  EXEMPTION  LAWS. 


SECTION 

924.  Distinction      between      general 

homestead  and  homestead  for 
Indian    and    freedman. 

925.  Homestead    in    forty   acres   for 

the  Indian   and  freedman. 

926.  The  homestead  law  a  constitu- 

tional   provision. 

927.  What    property    exempt    from 

attacliment  or  execution. 
92'8.  Homestead     shall     consist     of 
what — May   be   mortgaged. 

929.  Abandonment  —  Waiver — ^For- 

feiture. 

930.  Deed,  mortgage  or  contract  re- 

lating to  homestead  must  be 
in  writing,  and  both  husband 
and  wife  must  join. 

931.  When    husband    or    wife    may 

execute  instrument  without 
the  other  joining. 

932.  Husband  or  wife  executing  in- 

strument on  homestead  alone, 
can  be  avoided  only  by  the 
party   not   joining. 

933.  Husband    and   wife    must   join 

in  same  instrument  to  con- 
vey homestead. 

934.  Property  of  decedent  to  be  de- 

livered to  family  at  once — 
The  homestead. 

935.  Additional  allotment  to  widow 

and  children. 

936.  Selection  of  the  homestead. 


938. 


939. 


940. 


041 
942 


SECTION 

937.  Homestead    exempt   from    debt 

or  liability. 
Property    belonging    to    single 

person  exempt,  when. 
Homestead      exemptions     shall 

not  apply,  when. 
Personal  property  not  exempt, 

when. 
Pension   money   exempt,   when. 
Adult     heir     cannot     partition 

homestead    occupied    by   wife 

and  family. 
943.  Procedure  to  sell  homestead  of 

insane  husband  or  wife. 
914.  Petition  in  such  case. 

945.  Notice  to  be  served,  and  upon 

whom. 

946.  Order     of     court     authorizing 

sale. 

947.  Form   for   petition   for   sale  of 

homestead  of  insane  husband 
or  wife. 

948.  Form    for     order    for    hearing 

petition. 

949.  Form   for   notice   to   be   served 

on   nearest   male    relative    in 

State. 
Form    for    proof    of    service    of 

notice. 
Form     for     order     authorizing 

sale   of  homestead   of   insane 

husband. 
Form  for  deea  in  such  case. 


950. 


951. 


952. 


Sec.   924.    Distinction  between   general  homestead   and   the 
homestead  for  the  Indian  and  freedman. 

The  term  ''homestead,"  as  applied  to  the  exemptions  of  a 
debtor  from  levy   and   execution,   is   often   erroneously   used 

654 


655  HOMESTEAD   AND    EXEMPTION   LAWS.  §  925 

in  the  sense  of  the  forty  acres  of  each  quarter  section  of  land 
allotted  by  the  Federal  Government  to  the  Indian  and  freed- 
man  as  his  homestead.  The  terms  carry  with  each  an  entirely 
different  meaning,  which  should  not  be  disregarded.  The 
subject,  homestead,  is  provided  for  by  constitutional  provi- 
sion, and  is  regulated  in  this  State,  by  statute.  The  object 
of  the  law,  which  prevents  certain  lands  from  being  sold  to 
satisfy  debt,  is  not  to  protect  the  debtor,  but  it  is  to  protect 
the  family  in  its  enjoyment  of  a  home.  As  the  statute  relating 
to  the  subject  of  homesteads  treats  of  exemptions,  both  as 
to  real  and  personal  property,  and,  as  the  law  as  to  each  is 
interwoven  with  the  other,  the  law  and  procedure  as  to 
both,  will  be  discussed  in  this  chapter. 

Sec.  925.    The  homestead  in  forty  acres  for  the  Indian  and 
freedman. 

It  is  provided  by  Congress  that  lands  allotted  to  Indian  and 
freedman  shall  not  in  any  manner  whatsoever,  or  at  any  time, 
be  incumbered,  taken  or  sold  to  secure  or  satisfy  any  debt, 
or  obligation  contracted  or  incurred  prior  to  the  date  of  the 
deed  to  the  allotee  therefor,  and  such  lands  shall  not  be 
alienable  by  the  allotee  or  his  heirs  at  any  time  before  the 
expiration  of  five  years  from  the  ratification  of  this  agree- 
ment, except  with  the  approval  of  the  secretary  of  the  in- 
terior. Each  citizen  shall  select  from  his  allotment  forty  acres 
of  land  as  a  homestead,  which  shall  be  nontaxable  and 
inalienable  and  free  from  any  incumbrance  whatsoever  for 
twenty-one  years,  for  which  he  shall  have  a  separate  deed,  condi- 
tioned as  above :  Provided,  that  selections  of  homesteads  for 
minors,  prisoners,  convicts,  incompetents  and  aged  and  infirm 
persons,  who  cannot  select  for  themselves,  may  be  made  in 
the  manner  herein  provided  for  the  selection  of  their  allot- 
ments ;  and  if,  for  any  reason,  such  selection  be  not  made  for 
any  citizen,  it  shall  be  the  duty  of  such  commission  to  make 
selection  for  him. 

The  homestead  of  such  citizen  shall  remain,  after  the  death 
of  the  allotee,  for  the  use  and  support  of  children  born  to 


§  925  merwine's  trial  of  title  to  land.  656 

liim  after  the  ratification  of  tliis  agreement,  but  if  he  have 
no  such  issue  then  he  may  dispose  of  his  homestead  by 
will,  free  from  limitation  herein  imposed,  and  if  this  be  not 
done,  the  land  shall  descend  to  his  heirs  according  to  the 
law  of  descent  and  distribution  of  the  Creek  nation,  free  from 
such  limitation/ 

While  the  freedman  has  been  permitted  to  sell  his  entire 
allotment,  including  the  homestead,  yet,  the  forty  acres  here- 
tofore designated  as  his  homestead  is  still  generally  called  his 
homestead. 

In  discussing  this  subject,  ]\Ir.  Bledsoe,  in  his  valuable 
work,  "Indian  Land  Laws,"  says: 

"Under  the  agreements  made  between  the  United  States 
and  each  of  the  five  civilized  tribes,  and  under  the  laws  of 
the  United  States  applicable  to  the  allotees  of  each  of  the 
tribes,  a  homestead  is  reserved  out  of  each  allotment,  and  is 
made  inalienable  for  a  long  period  of  years.  This  may  be 
termed  a  homestead  by  reservation. 

"This  homestead  right  is  wholly  independent  of  occupancy. 
It  may,  and  most  frequently  does,  exist  as  to  land  never  in 
fact  occupied  as  a  homestead.  This  homestead  is  wholly  a 
creature  of  the  law  arising  from  the  agreements  between  the 
LTnited  States  and  the  various  tribes,  and  the  laws  enacted 
pursuant  thereto.  It  is  really  not  a  homestead  within  the 
accepted  meaning  of  that  term.  It  is  an  arbitrary  application 
of  the  term  'homestead'  to  a  certain  Dart  of  the  allotment 
which  the  allotee  is  prohibited  fron?  alienating  for  a  long 
period  of  time. 

"This  homestead  which,  for  the  purpose  of  this  discussion, 
will  be  termed  the  'reserved  homestead,'  may  become  an 
actual  homestead  by  occupancy  under  the  homestead  laws  of 
Oklahoma.  In  such  case  it  is  protected  not  only  by  the 
agreements  with  the  tribes  and  the  laws  of  the  United  States, 
but  also  by  the  homestead  laws  of  the  State  of  Oklahoma. 
"When  such  is  the  case,  in  order  to  pass  a  perfect  title,  the 

1  Creek  agreement,  Act  of  March  11,  1901    (31  Stat.  L.  861). 


657  HOMESTEAD    AND   EXEMPTION    LAWS.  §  926 

restrictions  upon  alienation  must  have  expired,  or  been  re- 
moved, and  both  husband  and  wife  must  join  in  the  convey- 
ance. If  the  homestead  is  such  by  reservation  only,  the 
husband  or  wife,  either,  whichever  happens  to  be  the  owner, 
may  convey  without  the  other  joining ;  likewise  that  part  of 
the  allotment  known  as  the  surplus  may  become  a  homestead 
by  occupancy  under  the  Constitution  and  laws  of  the  State, 
and,  in  such  case,  in  order  to  pass  a  perfect  title,  both  hus- 
band and  wife  must  join  in  the  conveyance." - 

Sec.  926.    The  homestead  law  a  constitutional  provision. 

The  homestead  of  any  family  in  this  State,  not  within  any 
city,  town  or  village,  shall  consist  of  not  more  than  one 
hundred  and  sixty  acres  of  land,  which  may  be  in  one  or 
more  parcels,  to  be  selected  by  the  owner.  The  homestead 
within  any  city,  town  or  village,  owned  and  occupied  as  a 
residence  only,  shall  consist  of  not  exceeding  one  acre  of 
land,  to  be  selected  by  the  owner:  Provided,  that  the  same 
shall  not  exceed  in  value  the  sum  of  five  thousand  dollars, 
and  in  no  event  shall  the  homestead  be  reduced  to  less  than 
one-quarter  of  an  acre,  without  regard  to  value ;  and  pro- 
vided, further,  that  in  case  said  homestead  is  used  for  both 
residence  and  business  purposes,  the  homestead  interests 
therein  shall  not  exceed  in  value  the  sum  of  five  thousand 
dollars :  Provided,  that  nothing  in  the  laws  of  the  United 
States,  or  any  treaties  with  the  Indian  tribes  in  the  State 
shall  deprive  any  Indian  or  other  allotee  of  the  benefit  of  the 
homestead  and  exemption  laws  of  the  State :  And  provided, 
further,  that  any  temporary  renting  of  the  homestead  shall 
not  change  the  character  of  the  same  when  no  other  home- 
stead has  been  acquired. 

The  homestead  of  the  family  shall  be,  and  is  hereby  pro- 
tected from  forced  sale,  for  the  payment  of  debts,  except  for 
the   purchase   money   therefor,    or   a   part   of   such   purchase 

2  Indian  Land   Laws,  by  Bledsoe,    Sec.  137,  pp.  178-180. 


§  927  merwine's  trial  op  title  to  land.  658 

money,  the  taxes  due  thereon,  or  for  work  and  material  used 
in  constructing  improvements  thereon ;  nor  shall  the  owner, 
if  married,  sell  the  homestead  without  the  consent  of  his  or 
her  spouse,  given  in  such  manner  as  may  be  prescribed  by 
law:  Provided,  nothing  in  this  article  shall  prohibit  any 
person  from  mortgaging  his  homestead,  the  spouse,  if  any, 
joining  therein ;  nor  prevent  the  sale  thereof  on  foreclosure 
to  satisfy  any  mortgage. 

After  the  adoption  of  this  Constitution,  paragraph  three 
of  section  four,  and  section  five,  of  Chapter  thirty-four,  Stat- 
utes of  Oklahoma,  of  eighteen  hundred  and  ninety-three,  shall 
be  inoperative :  Provided,  that  no  property  shall  be  exempt 
for  any  part  of  the  purchase  price  while  the  same,  or  any  part 
thereof,  remains  in  the  possession  of  the  original  vendee,  or  in 
possession  of  any  purchaser  from  such  vendee,  with  notice: 
And  provided,  further,  nothing  in  this  Constitution  shall  pre- 
vent or  prohibit  any  person  from  mortgaging  or  encumbering 
his  personal  exemptions.^ 

Sec.  927.    What  property  exempt  from  attachment  or  execu- 
tion. 

The  following  property  shall  be  reserved  to  every  family 
residing  in  the  State,  exempt  from  attachment  or  execution, 
and  every  other  species  of  forced  sale  for  the  payment  of 
debts,  except  as  hereinafter  provided:  First,  the  homestead 
of  the  family,  which  shall  consist  of  the  home  of  the  family, 
whether  the  title  to  the  same  shall  be  lodged  in  or  owned 
by  the  husband  or  wife.  Second,  all  the  household  and 
kitchen  furniture.*  Third,  any  lot  or  lots  in  a  cemetery  held 
for  the  purpose  of  sepulture.  Fourth,  all  implements  of 
husbandry  used  upon  the  homestead.  Fifth,  all  tools,  ap- 
paratus and  books  belonging  to  and  used  in  any  trade  or 
profession.  Sixth,  the  family  library,  and  all  family  por- 
traits and  pictures,  and  wearing  apparel.     Seventh,  five  milch 

3  Sections   1,  2  and   3   of  Art.   12   of  the   Constitution  of  the  State  of 
Oklahoma.  * 


659  HOMESTEAD   AND   EXEMPTION   LAWS.  §  928 

COWS,  and  their  calves  under  six  months  old.  Eighth,  one 
yoke  of  work  oxen,  with  necessary  yokes  and  chains.  Ninth, 
two  horses  or  two  mules,  and  one  wagon,  cart  or  dray. 
Tenth,  one  carriage  or  buggy.  Eleventh,  one  gun.  Twelfth, 
ten  hogs.  Thirteenth,  twenty  head  of  sheep.  Fourteenth,  all 
saddles,  bridles  and  harness  necessary  for  the  use  of  the 
family.  Fifteenth,  all  provisions  and  forage  on  hand,  or 
growing  for  home  consumption,  and  for  the  use  of  exempt 
stock  for  one  year.  Sixteenth,  all  current  wages  and  earn- 
ings for  personal  or  professional  services  earned  within  the 
last  ninety  days.* 

The   homestead   is    exempt   to   the    family,    and   cannot   be 
taken  on  attachment  for  a  tort  of  the  husband  and  father.^ 


Sec.    928.     The   homestead   shall    consist    of   what — May   be 
mortgaged. 

The  homestead  of  a  family  not  in  a  town  or  city  shall 
consist  of  not  more  than  one  hundred  and  sixty  acres  of 
land,  which  shall  be  in  one  tract  or  parcel  with  the  improve- 
ments thereon.  The  homestead  in  a  city,  town  or  village, 
shall  consist  of  a  lot,  or  lots,  not  to  exceed  one  acre  with 
the  improvements  thereon:  Provided,  that  the  same  shall  be 
used  for  the  purpose  of  a  home  for  the  family :  Provided,  also, 
that  any  temporary  renting  of  the  homestead  shall  not  change 
the  character  of  the  same  when  no  other  homestead  has  been 
acquired :  Provided,  however,  that  nothing  in  this  act  shall 
prohibit  any  person  from  mortgaging  his  or  her  homestead. 
The  exemption  herein  provided  for  must  not  be  construed  to 
apply  to  the  following  persons,  namely: 

1.  To  a  corporation  for  profit. 

2.  To  a  nonresident. 


4  Snyder,   3,346;    Wilson,   2,985.  s  Cassady  v.  Morris,  19  Okla.  203, 

91  Pac.  888. 


§§  929, 930        merwine's  trial  of  title  to  land.  660 

3.  To  a  debtor  who  is  in  the  act  of  removing  his  family 
from  the   State ;   or, 

4.  Who  has  absconded,  taking  with  him  his  family." 

Sec.  929.    Abandomnent — Waiver — Forfeiture. 

Where  land  has  by  occupancy  of  the  family  become  invested 
with  a  character  as  a  homestead,  a  constructive  occupancy 
will  be  sufficient,  and  any  temporary  absence  therefrom 
will  not  constitute  an  abandonment  of  it.'  The  abandon- 
ment of  property  used  as  a  home,  though  returning  to  the 
use  of  it  temporarily,  shall  be  regarded  as  a  waiver  of  the 
homestead  right.*  A  business  block,  a  part  of  which  was 
occupied  by  the  owner  and  his  family,  was  held  to  consti- 
tute a  homestead  and  be  exempt  from  levy  and  execution.** 
The  obligation  of  a  family  and  the  support  thereof,  is  neces- 
sary to  give  one  claiming  the  right  to  his  property  exempt 
as  a  homestead.  It  must  have  devolved  upon  him  to  support 
those  whom  the  law  requires  him  to  care  for.^°  Where  an 
insolvent  purchases  real  estate  and  directs  the  legal  title  to 
be  taken  by  a  third  person  for  his  and  his  family's  use,  the 
homestead  will  not  lose  its  character.^^ 

Sec.  930.  Deed,  mortg-age  or  contract  relating  to  homestead 
must  be  in  writing  and  both  husband  and  wife 
must  join. 

No  deed,  mortgage  or  other  conveyance  relating  to  real 
estate,  or  any  interest  therein,  other  than  for  a  lease  for  a 
period  not  to  exceed  one  year,  shall  be  valid  until  reduced 
to    writing    and    subscribed    by    the    grantor;    and    no    deed, 

e  Snyder,   3.347;    Wilson,   2.986.  9  DeFord   x.  Painter,   3   Okla.  80, 

7  Ball   V.   Houston,    11    Okla.   233,       41  Pac.  96. 

66  Pac.  358;  Rockwood  v.  St.  John's,  lo  Betts  v.  Mills,  8  Okla.  351,  .■;8 

10  Okla.  476,  62  Pac.  277.  Pac.   957;    but   see  Cordray  v.   Nel- 

8  Belts  V.   Mills,   8   Okla.   351,   58  son,  21   Okla.  574,  95  Pac.  761. 
Pac.    957 ;     Schultz    v.    Barrows,    8  n  Hunter    v.     Griffith,     12     Okla. 
Okla.  297.  56  Pac.  1,053;  Northwest  436,   72   Pac.   361. 

V.  McCarroll  (Okla.),  118  Pac.  352. 


661  HOMESTEAD    AND   EXEMPTION   LAWS.  §§931,932 

mortgage  or  contract  relating  to  the  homestead  exempt  by- 
law, except  a  lease  for  a  period  not  to  exceed  one  year, 
shall  be  valid  unless  in  writing  and  subscribed  by  both 
husband  and  wife  where  both  are  living  and  not  divorced, 
except  to  the  extent  hereinafter  provided. ^- 

This  rule  of  law  does  not  apply  where  the  husband  executes 
a  deed  on  the  homestead  to  the  wife.^^'  Nor  does  it  apply 
to  the  separate  property  of  the  wife  which  is  used  as  a  family 
residence." 

Sec.  931.    When  husband  or  wife  may  execute  instrument 
without  the  other  joining. 

Where  the  title  to  the  homestead  is  in  the  husband,  and  the 
wife  voluntarily  abandons  him  for  a  period  of  one  year,  or 
from  any  cause,  takes  up  her  residence  out  of  the  State,  he 
may  convey,  mortgage  or  make  any  contract  relating  thereto 
without  being  joined  therein  by  her,  and  where  the  title  to 
the  homestead  is  in  the  wife,  and  the  husband  voluntarily 
abandons  her,  or  from  any  cause  takes  up  his  residence  out 
of  the  State  for  a  period  of  one  year,  she  may  convey,  mort- 
gage or  make  any  contract  relating  thereto  without  being 
joined  therein  by  him.^^ 

Sec.  932.  Husband  or  wife,  executing  instrument  on  home- 
stead alone,  can  be  avoided  only  by  the  party 
not  joining. 

If  the  husband  shall  make  any  deed,  mortgage  or  contract 
relating  to  the  homestead  without  being  joined  therein  by 
his  wife,  he  shall  be  concluded  thereby,  and  the  same  can 
only  be  avoided  by  the  wife;  and  if  the  wife  shall  make 
any  deed,   mortgage   or   contract   relating   to   the   homestead 

12  Snyder,   1,187;   Wilson,  880.  is  Snyder,  1,189;  Wilson,  882;  see 

13  Hall  V.  Powell,  8  Okla.  276,  57  Hubert  v.  Wagg,  117  Pac.  (Okla.) 
Pac.    168.  209. 

14  McGinnis  v.  Wood,  4  Okla.  499, 
47   Pac.  492. 


§  933  merwine's  trial  of  title  to  land.  662 

without  being  joined  therein  by  the  husband,  she  shall  be 
concluded  thereby,  and  the  same  can  only  be  avoided  by  the 
husband;  and,  in  either  case,  the  husband  or  wife  entitled  to 
avoid  any  such  deed,  mortgage  or  contract  shall  be  con- 
cluded by  a  failure  after  due  notice  of  any  suit  in  a  court 
of  competent  jurisdiction,  to  set  forth  his  right,  title  or 
interest  therein/*'  Where  a  wife  clearly  understands  what 
she  is  doing  when  she  signs  a  mortgage  on  the  homestead, 
she  will  not  be  released  from  the  consequences  of  her  act.'' 


Sec.  933.     The  husband  and  wife  must  join  in  the  same  instru- 
ment to  convey  homestead. 

As  the  statute  provides  that  all  instruments,  other  than 
leases  for  one  year,  affecting  real  estate  occupied  as  to  the 
homestead,  are  void  unless  the  husband  and  wife  join  in  the 
execution  and  acknowledgment  of  the  instrument  conveying 
the  same,  it  was  held  in  this  State,  in  a  case  where  the  wife 
did  not  join  in  a  mortgage  executed  by  the  husband  on 
property  which  had  been  abandoned  as  a  homestead  by  the 
husband,  the  wife  not  having  signed  the  mortgage,  that,  as 
the  wife  did  not  join  in  the  mortgage,  it  was  void  from  the 
beginning.'^ 

It  is  seen  by  the  foregoing  that  the  husband  or  wife  must 
consent  to  the  other  before  the  homestead  can  be  conveyed. 
It  is  urged  by  some  that  the  consent  must  be  given  in  the 
same  deed  by  which  the  one  having  the  record  title  conveys. 
Indeed,  the  Legislature  not  having  enacted  how  the  consent 
is  obtained,  there  is  quite  an  array  of  decisions  holding  that 
it  must  be  so  made.'^ 

16  Snyder,  1,190;  Wilson,  883;  see,  is  Hall    v.    Powell,    8    Okla.    276, 

also,    Goldsborough    v.    Hewitt,    99  57  Pac.   168. 

Pac.    (Okla.)    907;    Love   v.   Cavett,  1 9  Hall    v.    Powell,    8    Okla.    276, 

109    Pac.    (Okla.)    553;    Cordray   v.  57     Pac.     168;     Smith    v.    Pine,     7 
Morgan,   21   Okla.  574,  95  Pac.  761. 

IT  Bastin  v.  Shafer,   15  Okla.  607, 

85  Pac.  349.  » 


663  HOMESTEAD   AND   EXEMPTION   LAWS.  §§934,935 

Sec.  934.     Property  of  decedent  to  be  delivered  to  family  at 
once;  the  homestead. 

Upon  the  death  of  either  husband  or  wife,  the  survivor  may 
continue  to  possess  or  occupy  the  whole  homestead  until  it 
is  otherwise  disposed  of  according  to  law;  and  upon  the 
death  of  the  husband  and  wife,  the  children  may  continue  to 
possess  and  occupy  the  whole  homestead  until  the  youngest 
child  becomes  of  age.-*'  This  statutory  provision  does  not 
entitle  any  single  survivor  of  the  family  to  the  possession  of 
the  property  and  homestead  unless  such  survivor  is  head  of 
the  family.-^ 


Sec.  935.    Additional  allotment  to  widow  and  children. 

In  addition  to  the  property  mentioned  in  the  preceding 
paragraph  there  shall  also  be  allowed  and  set  apart  to  the 
surviving  wife  or  husband,  or  minor  child  or  children  of  the 
decedent,  all  such  personal  property  or  money  as  is  exempt 
by  law  from  levy,  sale  on  execution,  or  other  final  process 
from  any  court,  to  be  with  the  homestead,  possessed  and 
used  by  them;  and  the  executor  or  administrator,  must  make 
and  return  a  separate  and  distinct  inventory  thereof,  in  the 
same  manner  as  required  for  the  property  mentioned  in  the 
preceding  paragraph,  and  no  such  property  shall  be  liable 
for  any  prior  debts  or  claims  against  the  decedent,  except 
where  there  are  no  assets  thereunto  available  for  the  pay- 
ment of  the  necessary  expenses  for  the  last  illness,  funeral 
charges  and  expenses  of  administration.^^ 


Am.     St.      (Ala.)      44;     Hodges     v.  474;    North   v.   Lamer,   84   Am.    St. 

Winston,   36    Am.    St.    241;    Martin  635;    Rogers  v.   Day,    15   Mich.   664, 

V.     Harrington,     73     Vt.     193,     87  69  Am.  St.  393;    O'Brien  v.  Welty, 

Am.   St.   704;    Hart  v.   Church,   126  94  Tex.   148,  86  Am.  St.  829. 
Cal.  471;    77  Am.   St.   195,  58  Pac.  20  Snyder,    5,265;     Wilson,     1,607. 

910;  Thompson  V.  New  England,  110  21  Betts  v.  Mills,   8   Okla.  351,  58 

Ala.   400,    55    Am.    St.    29;    Shields  Pac.   957. 
V.   Bush,    189   HI.   534,    82    Am.   St.  22  Snyder,  5,266;   Wilson,  1,608. 


§§  936-939         merwine's  trim,  of  title  to  land.  664 

Sec.  936.     Selection  of  the  homestead. 

If  no  homestead  has  been  selected,  marked  out,  platted  and 
recorded,  as  provided  by  the  homestead  law,  the  judge  of 
the  county  court  must  cause  the  same  to  be  done  according 
to  the  provisions  of  said  law.-^ 

Sec.  937.     Homestead  exempt  from  debt  or  liability. 

The  homestead  is  not  subject  to  the  payment  of  any  debt 
or  liability  contracted  by  or  existing  against  the  husband 
and  wife,  or  either  of  them,  previous  to  or  at  the  time  of  the 
death  of  said  husband  or  wife,  except  as  provided  in  the  law 
relating  to  homesteads.^* 

Sec.  938.     Property  belonging  to  single  person  exempt,  v/hen. 

The  following  property  shall  be  reserved  to  persons  who 
are  not  heads  of  a  family  exempt  from  attachment,  execu- 
tion and  every  other  species  of  forced  sale;  except  for  liens 
given  by  the  owners : 

1.  A  lot,  or  lol,s,  in  a  cemetery  held  for  the  purpose  of 
sepulture. 

2.  All  wearing  apparel. 

3.  All  tools,  apparatus  and  books  belonging  to  any  trade 
or  profession. 

4.  One  horse,  bridle  and  saddle,  or  one  yoke  of  oxen. 

5.  Current  wages  for  personal  services.^^ 

Sec.  939.     Homestead  exemptions  shall  not  apply,  when. 

The  exemption  of  the  homestead  provided  for  in  this  chap- 
ter, shall  not  apply  where  the  debt  is  due : 

1.  For  the  purchase  money  of  such  homestead  or  a  part  of 
such  purchase  money. 

2.  For  taxes  due  thereon.^^ 

23  Snyder,  5.207;  Wilson,  1.609.  =5  Snyder,  3,348;  Wilson,  2,987. 

24  Snyder,  5,258;   Wilson,  1,610.  26  Snyder,"3,349;   Wilson,  2,988. 


665  HOMESTEAD   AND   EXEMPTION   LAWS.  §§  940-944 

Sec.  940.     Personal  property  not  exempt,  when. 

None  of  the  personal  property  mentioned  in  this  chapter 
shall  be  exempt  from  attachment  or  execution  for  any  wages 
of  any  clerk,  laborer  or  servant.-^ 

Sec.  941.    Pension  money  exempt,  when. 

There  shall  also  be  exempt  from  levy  and  sale  upon  execu- 
tion or  attachment,  to  every  resident  of  this  State  who 
became  disabled  in  the  service  of  the  United  States  as  a 
soldier,  sailor  or  marine,  all  pension  money  hereafter  re- 
ceived by  such  soldier,  sailor  or  marine.^^ 

Sec.   942.     Adult  heir   cannot   partition  homestead   occupied 
by  the  wife  and  family. 

It  has  been  held  that  when  the  homestead  is  occupied  by 
the  wife  and  family  as  a  homestead,  an  adult  heir  cannot 
have  the  same  partitioned.* 

Sec.  943.     Procedure  to  sell  the  homestead  of  insane  husband 
or  wife. 

In  case  of  a  homestead,  if  either  the  husband  or  wife  shall 
become  hopelessly  insane,  upon  application  of  the  husband 
or  wife  not  insane,  to  the  district  court  of  the  county  in 
which  the  homestead  is  situated,  and  upon  due  proof  of  such 
insanity,  the  court  may  make  an  order  permitting  the  hus- 
band or  wife  not  insane  to  sell  and  convey,  or  mortgage  such 
homestead.-*^ 

Sec.  944.     The  petition  in  such  case. 

The  applicant  under  the  provisions  of  this  chapter,  shall 
present  and  tile  in  the  court,  a  verified  petition  setting  forth 
the  name  and  age  of  the  insane  husband  or  wife;  a  descrip- 

27  Snyder,  3,350;  Wilson.  2.089.  OG    Pac.    60S;    Miller    v.    I-Iasf5man, 

28  Snyder,  3,351;   Wilson,  2,990.  103  Pac.  377. 
Fink    V.    Baker,    21    Okla.    402,  29  Snyder,  3,352;  Wilson,  2,991. 


*  tt;. 


§§  945-947  merwine's  trial  of  title  to  land.  666 

tion  of  the  premises;  the  county  in  which  it  is  situated;  and 
such  facts  in  addition  to  tliat  of  the  insanity  of  the  husband 
or  wife  relating  to  the  circumstances  and  necessities  of  the 
applicant,  and  his  or  her  family,  as  he  or  she  may  rely  upon 
in  support  of  the  petition.^^ 

Sec.  945.     Notice  to  be  served  and  upon  whom. 

At  least  thirty  days  before  the  hearing  of  the  petition,  the 
applicant,  or  his  or  her  attorney,  shall  serve  a  copy  of  such 
upon  the  nearest  male  relative  of  such  insane  husband  or 
wife,  residing  in  this  State,  and  in  case  there  be  no  such 
male  relative  known  to  the  applicant,  a  copy  of  such  petition 
shall  be  served  on  the  county  attorney  of  the  county  in 
which  such  homestead  is  situated ;  and  it  is  hereby  made 
the  duty  of  such  county  attorney  upon  being  served  with  a 
copy  of  such  petition,  to  appear  in  court,  and  see  that  such 
application  is  made  in  good  faith  and  that  the  proceedings 
thereon  are  fairly  conducted.^^ 

Sec.  946.     Order  of  court  authorizing  sale. 

If  the  court  shall  make  an  order  authorizing  the  sale  of 
the  homestead  as  herein  above  provided,  the  same  is  required 
to  be  entered  upon  the  minutes  of  the  court,  and  thereafter 
the  sale,  conveyance  or  mortgage  made  in  pursuance  of  such 
order  shall  be  as  valid  and  effectual  as  if  the  property 
affected  thereby  was  the  absolute  property  in  fee  simple  of 
the  person  making  such  sale,  conveyance  or  mortgage.^- 

Sec.  947.    Form  for  petition  for  sale  of  homestead  of  insane 
husband  or  wife. 

District  Court,  County,  State  op  Oklahoma. 

,  Plaintiff, 

vs.  No.  . 

• ,  Defendant. 


30  Snyder,  3,3.53 ;  Wilson,  2,992.  32  Snyder,  3,355 ;  Wilson,  2,993. 

31  Snyder,  3,354 ;   Wilson,  2,992. 


667  HOMESTEAD    AND   EXEMPTION    LAWS.  §  948 

PETITION. 

Comes  now  the  plaintiff  and  alleges  that  she  is  the  wife  of 

,   and  that   defendant,   ,   is   her  husband,   who  is 

years  of  age  and  is  hopelessly  insane ;  that  her  said  hus- 


band is  seized  of  an  estate  in  fee  simple  in  and  to  the  following 

described   real   estate   in  County,    State   of   Oklahoma, 

to-wit:  (Here  describe  it),  which  is  the  homestead  of  plaintiff 
and  defendant ;  and  that  plaintiff  is  unable  to  care  for  said  land 
which  is  a  farm  under  cultivation,  and  she  has  no  means  for  the 

support   of  herself  and  children,   all   of  whom   are  of 

tender  years,  and  all  of  whom  are  the  children  of  plaintiff  and 
defendant. 

Wherefore,  plaintiff  prays  that  she  may  be  authorized  to  sell 
said  real  estate,  to-wit:  (Here  describe  real  estate  again),  either 
at  public  or  private  sale,  either  with  or  without  appraisement, 
and  make  and  execute  deeds  to  the  purchaser  thereof,  as  the 
court  may  deem  beneficial,  and  for  such  other  and  further  orders 
as  the  court  may  deem  wise  and  proper. 


Attorney  for  Plaintiff. 

State  of  Oklahoma, County,  ss. : 

,  being  first  duly  sworn,  says  that  she  is  the  plaintiff 

in  the  above  action,  and  that  the  facts  stated  and  allegations 
contained  in  the  above  and  foregoing  petition  are  true. 


Sworn  to  before  me  and  subscribed  in  my  presence  this 
day  of ,  19—.  


Notary  Public, County,  Oklahoma. 

My  commission  expires  . 

Sec.  948.     Form  for  order  for  hearing  petition. 

In  THE  District  Court  op County,  State  of 

Oklahoma. 

,  Plaintiff, 

vs.  No. 

,  Defendant. 


§§949,950         merwine's  trial  op  title  to  land.  668 

ORDER  FOR  HEARING  PETITION  TO  SELL  HOME- 
STEAD OF  INSANE  HUSBAND. 

Now,  on  this day  of  ,  19—,  comes ,  wife 

of ,  having  filed  her  petition  for  the  sale  of  her  husband's 

real  estate  for  reasons  stated  in  her  said  petition : 

It  is  ordered  that   said  petition  be,  and  hereby  is,  set   for 

hearing  on  the day  of  ,  19—,  at  o'clock, 

—  m.,  and  thirty  days'  notice  of  this  hearing  be  given  to , 

residing  at ,  Oklahoma,  he  being  the  nearest  male  relative 

of  defendant  living  in  the  State  of  Oklahoma  in County. 

~        > 

Judge  of  said  Court. 


Sec.   949.     Form  for  notice   to  be   served   on  nearest  male 
relative  in  State. 

To  , OkWioma: 

You  are  hereby  notified  that  ,  as  the  wife  of 


who  is  hopelessly  insane,  has  filed  her  petition  in  the  district 

court  of County,  State  of  Oklahoma,  asking  that  she  be 

permitted,  by  order  of  said  court,  to  sell  the  following  described 

real  estate  in  the  county  of  ,  State  of  Oklahoma,  to-wit : 

(Here  describe  real  estate),  the  same  being  their  homestead. 
Said  sale  is  asked  for  to  provide  funds  for  the  support  of  plain- 
tiff in  said  action  and  their  said  family. 

Said  petition  is  set  for  hearing  in  the  courtroom  of  the  district 

court  of County,  State  of  Oklahoma,  at ,  at 

0  'clock,  —  m.,  on  the day  of ,  19—. 


Judge  of  said  Court. 


Sec.  950.    Form  for  proof  of  service  of  notice. 

State  of  Oklahoma, County,  ss. : 

,  being  duly  sworn,  says  that  she  is  the  plaintiff  in  the 

above  action,  and  being  first  duly  sworn,  on  the  day  of 


669  HOMESTEAD    AND   EXEMPTION   LAWS.  §  9ol 

,  19 — ,  she  handed  to  — ,  residing  at  ,  Okla- 


homa, a  true  copy  of  the  notice  hereto  attached,  marked  "Ex- 
hibit A"  and  made  a  part  hereof. 


Sworn  to  and  subscribed  in  my  presence  on  this,  the 
day  of ,  19—. 


My  commission  expires .  Xotary  Public. 

Here  attach  copy  of  the  notice  to  the  affidavit. 


Sec.  951.     Form  for  order  authorizing  sale  of  homestead  of 
insane  husband. 

In  THE  District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No.  . 

■ ,  Defendant. 


ORDER  AUTHORIZING  SALE  OF  HOMESTEAD  OF 
INSANE  HUSBAND. 

This  cause  this  day  coming  on  for  hearing  herein,  and  no  one 
appearing  to  contest  the  same,  the  court,  after  hearing  the  evi- 
dence introduced  and  the  argument  of  counsel,  and  being  fully 
advised  in  the  premises,  finds: 

1.  That  said  is  hopelessly  insane  and  is  confined  in 

the  hospital  for  the  insane  at  ,  Oklahoma. 

2.  That  the  real  estate  described  in  the  petition  is  the  home- 
stead of  plaintiff  and  defendant,  and  was  occupied  by  them  at 
the  time  of  defendant's  insanity,  and  is  now  occupied  by  the 
plaintiff  and  their  said  family. 

3.  That  it  is  necessary  and  proper  that  the  plaintiff  sell  the 
same  and  that  she  use  the  funds  arising  from  such  sale  for  the 
support  of  herself  and  her  said  family. 

It  is  Therefore  ordered,  adjudged  and  decreed  that  

be,  and  she  is  hereby,  authorized  and  directed  to  sell  the  real 
estate  described  in  the  petition,  either  at  public  or  private  sale, 
upon  such  terms   and  conditions  as   she  may  deem   wise  and 


§  952  merwine's  trial,  of  title  to  land.  G70 

proper,  and  she  is  authorized  further  and  directed  to  make, 
acknowledge  and  deliver  deeds  therefor  to  the  purchaser  for  the 

fee  simple  title  thereto.  , 

Judge  of  said  Court. 

Sec.  952.     Form  for  deed  in  such  case. 

Whereas,  on  the day  of ,  19 — , filed  her 

petition    in   the    district   court   of   County,    Oklahoma, 

against  ,  alleging  that  said  defendant  was  hopelessly  in- 
sane, and  asking  the  court  that  she  be  permitted  to  sell  the  real 
estate  therein  described ;  and. 

Whereas,  on  the day  of ,  19—,  plaintiff  notified 

,  the  nearest  male  relative  of  defendant  residing  in  the 

State  of  Oklahoma,  of  the  time  and  place  of  hearing  said  appli- 
cation ;  and, 

Whereas,  on  the day  of ,  19 — ,  said  court  heard 

the  evidence  in  said  cause,  and  ordered  that  said  plaintiff  be 
permitted  to  sell  said  real  estate  upon  such  terms  and  conditions 
as  she  might  deem  proper,  either  at  public  or  private  sale,  and 
either  with  or  without  appraisement ;  and, 

Whereas,  on  the  day  of  ,  19 — ,  said  plaintiff 

received  from  a  bid  for  said  real  estate  at  private  sale, 

in  the  sum  of  $ ,  said  sum  being  the  best  price  plaintiff 

could  obtain  for  said  real  estate,  and  the  reasonable  cash  value 
thereof. 

Now,  Therefore,  in  consideration  of  the  premises,  and  said 

sum  of  $ ,  in  hand  paid,  the  receipt  of  which  is  hereby 

acknowledged,  the  said  does  hereby  grant,  bargain,  sell 

and  convey  unto  the  following  described  real  property 

and  premises,  situated  in  County,  State  of  Oklahoma, 

to-w'it :  (Here  describe  premises),  together  with  all  the  improve- 
ments thereon  and  appurtenances  thereunto  belonging. 

To  Have  and  to  Hold  said  above  described  premises  unto 
said  ,  his  heirs  and  assigns  forever,  free,  clear  and  dis- 
charged of  and  from  all  former  grants,  titles,  charges,  judg- 
ments, taxes,  assessments,  mortgages  and  all  other  liens  and 
incumbrances  of  whatsoever  nature. 


671  HOMESTEAD   AND   EXEMPTION    LAWS.  §  952 

Signed  and  Delivered  this day  of ,  19 — . 


State  of  Oklahoma, County,  ss. : 

Before  me, ,  a in  and  for  said  county  and  State, 

on  this day  of ,  19 — ,  personally  appeared , 

to  me  known  to  be  the  identical  person  who  executed  the  within 
and  foregoing  instrument,  and  acknowledged  to  me  that  she 
executed  the  same  as  her  free  and  voluntary  act  and  deed  for  the 
uses  and  purposes  therein  set  forth. 

In  Testimony  Whereof,  I  have  hereunto  affixed  my  hand  and 
notarial  seal  the  day  and  year  above  mentioned. 


[Seal.]  Notary  Public  in  and  for County. 

My  commission  expires  . 


CHAPTER   XVI. 
LANDLORD  AND  TENANT. 


SECTION 

953.  Preliminary  statement. 

954.  Tenant    defined. 

955.  Tenant   from   year   to   year — 

Month   to   montli. 

956.  To    hold   from   one    period   to 

another,  when. 

957.  Notice   to   terminate   tenancy. 

958.  Tenancy  from  year  to  year — 

How   terminated. 

959.  Notice     to      terminate      farm 

tenancy. 

960.  Rent     not     paid — Notice      to 

quit — Ten  days. 

961.  Rent     not     paid — Notice     to 

quit — Five    days. 

962.  Notice  not  necessary,  when. 

963.  Notice — How  served. 

964.  Tenant  not  to  assign  interest, 

when. 

965.  Landlord  may  re-enter,  when. 

966.  Conveyance  by  landlord — Pay- 

ment of  rent. 

967.  Attornment  void,  when. 

968.  Sublessees. 

969.  Alienees  of  lessors  and  lessees. 

970.  Rent    from    life   grants — ^How 

recovered. 

971.  Arrears  at  death — May  be  re- 

covered. 

972.  Executors  and  administrators 

may  recover  rents. 

973.  Occupants  liable. 

974.  Joint    tenants. 

97'5.  Joint     tenant     may     recover 
against  his   cotenant. 

976.  Estate  in  remainder  or  rever- 

sion. 

977.  Rent  for  farm  land — Lien  on 

crop. 

978.  Share   of   crop    as    rent — ^Les- 

sor's  rights  in. 


SECTION 

979.  Purchaser    of    crop    liable   for 

rent,  when. 

980.  Landlord    may    attach,    when. 

981.  Attachment     to    enforce     lien 

on  crop,  how  obtained. 

982.  Courts — Jurisdiction  of. 

983.  Improvements — Taxes  on. 

984.  Lease  must  be  in  writing. 

985.  When    husband    or   wife    may 

lease  homestead. 

986.  Lease   valid   as   against   third 

persons  only  when  recorded. 

987.  Notice — Classes  —  Actual  — 

Constructive  —  Presumption 
of  constructive  notice. 

988.  I^ase  allowed  to  record,  when. 

989.  Lease     received     in     evidence, 

when. 

990.  Requirement  as  to  writing  or 

printing    of    lease. 

991.  Tenant  estopped  from  denying 

landlord's  title. 

992.  Form  for  farm  lease. 

993.  Form   for   lease   of    furnished 

house. 

994.  Form  for   lease   of   apartment 

house. 

995.  Form   for   lease  of   storeroom 

with  chattel  mortgage  clause. 
99'6.  Form  for  assignment  of  lease 
indorsed  on  lease. 

997.  Form     for     ninety-nine     year 

lease  renewable  forever. 

998.  Form  of  petition  by  landlord 

under  lien  on  crop  sold  by 
tenant  to  purchaser  with 
notice. 

999.  Form   for   petition  replevying 

landlord's  share  of  crop. 
1000.  Form  for  affidavit  of  replevin 
in  such  case. 

672 


673  LANDLORD    AND   TENANT.  §§953,954 


SECTION  SECTION 

1001.  Form  for  replevin  bond.  1006.  Form  for  notice  to  quit  after 

1002.  Form  for  writ   of  replevin.  rent   due. 

1003.  Form   for   affidavit   in   attach-  1007.  Form   for  notice   to   quit  ten- 

ment  for  rent  on  farm  land.  ancy  on  farm. 

1004.  Form  for  order  of  attachment  1008.  Form   for   affidavit   of   service 

for  rent  on  farm  land.  of  notice   to  quit. 

1005.  Form  for  notice  to  tenant  to 

quit  premises. 


Sec.  953.    Preliminary  statement. 

There  is  but  little  procedure  to  be  given  here  on  this  sub- 
ject. The  practice  questions  growing  out  of  the  topics 
treated  in  this  chapter  are  found  elsewhere  in  this  work. 
The  most  important  are  forcible  entry  and  detainer,  and 
ejectment.  It  is  sufficient  now  to  say,  that  the  questions  of 
the  method  of  acquiring  possession  of  real  estate,  and  the 
defenses  thereto,  as  to  practice  and  substantive  law,  will  be 
treated  under  the  subjects  last  named.  While  a  few  forms 
are  here  given  for  the  practitioner,  to  replevin  and  attach 
crops  under  landlord's  lien  for  the  payment  of  rent,  yet, 
the  reader  is  referred  for  general  forms  to  the  treatment  of 
the  subjects  of  replevin  and  attachment  found  in  other  text- 
books on  this  subject.^ 

At  the  concluding  part  of  this  chapter  will  be  found  forms 
suggesting  the  manner  of  the  preparation  of  many  kinds  of 
leases  which  the  practitioner  is  called  upon  to  prepare, 
together  with  various  forms  for  notice  to  vacate  premises. 

Sec.  954.    Tenant  defined. 

Any  person  in  possession  of  real  property,  with  the  assent 
of  the  owner,  is  presumed  to  be  a  tenant  at  will,  unless  the 
contrary  is  shown,  except  as  herein  otherwise  provided.* 

iSee,  also,  Kinkead's  Code  Plead-  Vol.  1,  Sees.  672  to  713;   Ibid,  Vol. 

ing,  Vol.  1,  Sees.  255  to  268;   Ibid,  3,    Sees.    2,600    to    2,604. 
Vol.    2,    Sees.    1078    to    1093;     also  *  Snyder,   4,075;   Wilson,   3,320. 

Bates'  Pleading  and  Practice  Forms, 


§  955  merwine's  trial  of  title  to  land.  674 

A  person  who  goes  into  possession  of  a  town  lot  or  upon 
public  lands,  as  a  tenant  of  one  who  has  improved  the  lot  by 
erecting  a  building  thereon,  will  not  be  heard  to  assert  a 
claim  adverse  to  his  landlord,  by  reason  of  occupancy,  set- 
tlement or  improvement,  until  he  shall  have  vacated  the  prem- 
ises and  surrendered  possession  to  his  landlord.- 


Sec.  955.     Tenancy  from  year  to  year — Month  to  month. 

When  the  premises  are  let  for  one  or  more  years,  and  the 
tenant  with  the  assent  of  the  landlord,  continues  to  occupy 
the  premises  after  the  expiration  of  the  term,  said  tenant 
shall  be  deemed  to  be  a  tenant  from  year  to  year.^ 

When  premises  are  let  for  one  or  more  years,  and  the 
tenant  with  the  assent  of  the  landlord,  continues  to  occupy 
the  premises  after  the  term,  such  tenant  will  be  deemed  to 
be  a  tenant  at  wall :  Provided,  that  no  lease  or  rental  contract 
of  premises  shall  be  continued,  unless  the  original  contract 
w^as  in  writing,  and  all  other  lease  contracts  shall  expire  by 
limitation  with  the  calendar  year,  without  notice.* 

It  has  been  held  that  a  tenancy  from  month  to  month  is 
created  where  the  parties  enter  into  a  lease  which  provides 
that  after  a  certain  period,  the  lease  shall  be  so  considered, 
and  the  tenant  continues  to  occupy  under  said  lease.^ 

Again,  it  has  been  held  that  the  general  rule  of  law  that 
when  a  tenant,  with  the  consent  of  the  landlord,  express  or 
implied,  holds  over  his  term,  the  law  implies  a  continuation 
of  the  original  tenancy  upon  the  same  terms  and  conditions, 
does  not  obtain  in  a  case  Avhere  the  rent  reserved  in  the 
original  lease  for  the  most  part  consists  of  the  performance 
by  the  tenant  of  labor  upon  the  premises  of  such  a  nature 

2  Hajrar    v.   Wikoff,    2    Okla.    580,  5  Pappe    v.    Trout,    3    Okla.    2G0, 

39  Pac.  281.  41    Pac.    397;    Intfen   v.    Foster,   56 

sSnydor,     4,076;     Wilson,     3,321;  Pac.  1,125;  Nelson  v.  Ware,  47  Pac. 

Kansas  Statutes  identical.  540;    Ware  v.  Nelson,  45  Pac.  923; 

4  Act  of  March  8,   1911.  Bard  v.  Elston,  1  Pac.  565. 


675  LANDLORD   AND   TENANT.  §§  956,  957 

that,  being  once  performed  during  the  original  term,  becomes 
incapable  of  further  performance  by  the  tenant  while  holding 
over.^ 

Sec.  956.     To  hold  from  one  period  to  another,  when. 

"When  rent  is  reserved,  payable  at  intervals  of  three  months 
or  less,  the  tenant  shall  be  deemed  to  hold  from  one  period 
to  another,  equal  to  the  intervals  between  the  days  of  pay- 
ment, unless  there  is  au   express  contract  to  the   contrary.'^ 

Where  a  tenant  goes  into  possession  of  real  estate  under  a 
written  lease,  for  one  year,  with  the  privilege  of  two  years, 
executed  by  the  landlord,  and  accepted  and  complied  with 
by  him,  and  remains  in  possession  thereof  four  years,  without 
any  new  agreement  except  as  to  the  amount  of  rent  payable, 
this  will  constitute  a  tenancy  from  year  to  year;  and  the 
nature  of  such  tenancy  is  not  changed  by  the  fact  that  the 
annual  rental  was  payable  in  equal  monthly  installments.* 

Sec.  957.     Notice  to  terminate  tenancy. 

Thirty  days'  notice  in  writing  is  necessary  to  be  given 
by  either  party  before  he  can  terminate  a  tenancy  at  will, 
or  from  one  period  to  another  of  three  months  or  less;  but 
where  in  any  case,  rent  is  reserved,  payable  at  intervals  of 
less  than  thirty  days,  the  length  of  notice  need  not  be  greater 
than  such  interval  between  the  days  of  payment.^ 

Where  a  tenant  leases  a  dwelling  house  from  his  landlord, 
without  any  definite  time  being  fixed  for  the  expiration  of 
the  lease,  and  agrees  to  pay  a  specified  sum  every  month, 
to  be  paid  monthly,  and  the  tenant  continues  in  possession 
of  the  premises  for  over  two  years,  with  the  consent  of  his 
landlord,  but  fails  to  pay  any  rent,  although  frequently  re- 

6  Martin    v.    Hamersky,    65    Pac.  7  Snyder,    4,077;     Wilson,    3,322; 

i  Ian.)  637,  12  Am.  and  Eng.  Enc.  Pappe  v.  Trout,  3  Okla.  260,  41 
ISSq    (1st   ed.);    Dilles  v.   Roberts,       Pac.  397. 

13   Serg.   and   R.    63;    Ives   v.   Wil-  s  Jntfen  v.  Foster,  56  Pac.  (Kan.) 

Hams,  50  Mich.   106,   15   N.  W,   36.       1,125. 

9  Snyder,     4,078;     Wilson,    3,323; 
Kansas,    2,284,    identical. 


§§958,959         merwine's  trial  of  title  to  land.  676 

quested  so  to  do,  and  his  landlord  then  finally  decides  that 
he  wants  possession  of  the  premises,  and  gives  the  tenant 
formal  notice  to  quit,  it  was  held,  that  the  action  of  unlawful 
detainer  is  not  barred  because  of  such  possession  by  the 
tenant  with  the  consent  of  the  landlord  for  over  two  years/*' 
In  construing  this  section  of  the  statute,  the  Supreme 
Court  of  Kansas  held  that  thirty  days'  notice  in  writing  is 
necessary  to  be  given  by  either  party  before  he  can  terminate 
a  tenancy  at  will,  or  from  one  period  to  another  for  three 
months  or  less;  that  the  thirty  days'  notice  prescribed  by 
statute  to  be  given  by  a  tenant  to  terminate  a  tenancy  at 
will,  like  almost  every  other  species  of  notice  required  by 
law,  may  be  waived  by  the  landlord,  and  that  where  the 
landlord  has  actual  notice  that  a  tenant  at  will,  who  is  to 
pay  his  rent  monthly,  is  about  to  remove  and  vacate  his 
premises  without  written  notice,  as  prescribed  by  the  statute, 
and  the  landlord  brings  an  action  against  him  for  rent,  and 
recovers  for  one  month,  being  one  rent  period,  after  actual 
notice  and  for  the  full  time  of  occupancy,  such  actual  notice 
and  conduct  of  the  parties  terminate  the  tenancy  at  will, 
and  the  landlord  cannot  recover  any  rent  for  the  vacated 
premises,  in  another  action,  for  the  subsequent  month  or  rent 
period." 

Sec.  958.    Tenancy  from  year  to  year — How  terminated. 

All  tenancies  from  year  to  year  may  be  determined  by  at 
least  three  months'  notice,  in  writing,  given  to  the  tenant 
prior  to  the  expiration  of  the  year.^^ 

Sec.  959.    Notice  to  terminate  farm  tenancy. 

In  case  of  tenants  occupying  and  cultivating  farms,  the 
notice  must  fix  the  termination  of  the  tenancy  to  take  place 
on  the  first  day  of  January. ^^ 

loMoran     v.      Moran,  38      Pac.  12  Snyder.    4,070;    Wilson,    3.324; 

(Kan.)    268.  Kansas,   3,849,   identical;    Nelson   v. 

11  Betz      V.      Maxwell,  29      Pac.       Ware,  47  Pac.  540. 
(Kan.)    147.  is  Snyder,  4,080;   Wilson,  3,325. 


677  LANDLORD   AND   TENANT.  §§  960-963 

Sec.  960.    Rent  not  paid — Notice  to  quit — Ten  days. 

If  a  tenant  for  a  period  of  three  months  or  longer  neglects 
or  refuses  to  pay  rent  when  due,  ten  days'  notice  in  writing 
to  quit  shall  determine  the  lease,  unless  such  rent  be  paid 
before  the  expiration  of  said  ten  days." 

Sec.  961.     Rent  not  paid — Notice  to  quit — Five  days. 

If  a  tenant  for  a  period  of  less  than  three  months  shall 
neglect  or  refuse  to  pay  rent  when  due,  five  days'  notice  in 
writing  to  quit  will  determine  the  lease,  unless  such  amount 
be  paid  before  the  expiration  of  said  five  days.^^ 

Sec.  962.     Notice  not  necessary,  when. 

When  the  time  for  the  termination  of  the  tenancy  is 
specified  in  the  contract,  or  where  a  tenant  at  will  commits 
waste,  or  in  the  case  of  a  tenant  by  sufferance,  or  in  any 
case  Vi^here  the  relation  of  landlord  and  tenant  does  not  exist, 
no  notice  to  quit  is  necessary.^*' 

This  statute  regulates  the  method  of  terminating  a  tenancy 
from  year  to  year,  and  in  order  to  terminate  such  a  tenancy, 
the  tenant  is  not  required  to  give  notice  to  the  landlord  of 
his  intention  to  sever  the  relation,  and  to  quit  the  premises.^^ 

Sec.  963.     Notice — How  served. 

Notice,  as  required  in  the  preceding  paragraph,  may  be 
served  on  the  tenant,  or  if  he  cannot  be  found,  by  delivering 
the  same  to  some  person  over  twelve  years  of  age,  residing 
on  the  premises,  having  first  made  known  to  such  person  the 
contents  thereof.^^ 

"Snyder,    4,081;    Wilson,    3,320;  i7  Nelson  v.  Ware,  47  Pac.  (Kan.) 

Kansas,   3,851,    identical.  540. 

15  Snyder,  4.0S2;   Wilson,  3,327.  is  Snyder,  4,084;  Wilson,  3,329. 

16  Snyder,    4,083;    Wilson,    3,328; 
Kansas    3,853,  identical. 


§§  964-967        mebwine's  trial  of  title  to  land.  678 

Sec.  964.    Tenant  not  to  assign  interest,  when. 

No  tenant  for  a  term  not  exceeding  two  years,  or  at  will, 
or  by  sufferance,  is  permitted  to  assign  or  transfer  his  term 
or  interest,  or  any  part  thereof,  to  another,  without  the 
written  assent  of  the  landlord,  or  person  holding  nnder  him/^ 

The  courts  of  last  resort  in  Kansas,  under  this  statute,  de- 
cided that  a  tenant  for  the  term  of  one  year,  could  not 
assign  or  transfer  to  another,  any  interest  under  his  lease, 
without  the  assent  of  his  landlord.^*' 

Sec.  965.    Landlord  may  re-enter,  when. 

If  any  tenant  violates  the  provisions  of  the  preceding  par- 
agraph as  to  the  assignment  of  his  lease,  the  landlord,  or 
person  holding  under  him,  after  giving  ten  days'  notice  to 
quit  possession,  will  have  a  right  to  re-enter  the  premises,  and 
take  possession  thereof,  and  dispossess  the  tenant,  subtenant 
or  undertenant.^^ 

Sec.  966.     Conveyance  by  landlord — Pa3mient  of  rent. 

The  conveyance  of  real  estate,  or  of  any  interest  therein, 
by  the  landlord,  is  valid  without  the  attornment  of  the 
tenant,  but  the  payment  of  rent  by  the  tenant  to  the  grantor 
at  any  time  before  notice  of  sale,  given  to  said  tenant,  will  be 
good  against  the  grantee.-^ 

Sec.  967.     Attornment  of  tenant  void,  when. 

The  attornment  of  a  tenant  to  a  stranger  is  void,  and  will 
not  affect  the  possession  of  his  landlord,  unless  it  be  made 
with  the  consent  of  the  landlord,  or  pursuant  to  a  judgment 
at  law,  or  order  or  decree  of  a  court. -^ 

The  word  "attornment"  is  synonymous  with  the  word 
"consent."      In    this    connection    the    statute    means    that    a 

"Snyder,    4,085;    Wilson,    3,333;  21  Snyder,  4,086;   Wilson,  3,331. 

Kansas,  3,855,   identical.  22  Snyder,  4.087;   Wilson,  3,332. 

20Gano  v.  Prindle,  50  Pac.  23  Snyder,  4,088;  Wilson,  3,333. 
(Kan.)    110. 


679  LANDLORD   AND   TENANT,  §§  968-973 

tenant  cannot  convey  his  interest  in  the  land  to  a  stranger 
without  the  consent  of  his  landlord. 

Sec.  968.    Sublessees. 

Sublessees  have  the  same  remedy  upon  the  original  cov- 
enant against  the  principal  landlord,  as  they  might  have  had 
against  their  immediate  lessor.^* 

Sec.  969.     Alienees  of  lessor  and  lessees. 

Alienees  of  lessors  and  lessees  of  land  have  the  same  legal 
remedies  in  relation  to  such  lands  as  their  principal.-^ 

Sec.  970.    Rents  from  life-grants,  how  recovered. 

Eents  from  land  granted  for  life,  or  lives,  may  be  recov- 
ered as  other  rents.^® 

Sec.  971.    Arrears  at  death — May  be  recovered. 

A  person  entitled  to  rents  dependent  upon  the  life  of  an- 
other, may  recover  arrears  unpaid  at  the  death  of  that 
other.^^ 

Sec.  972.     Executors  and  administrators  may  recover  rents. 

Executors  and  administrators  are  given  the  same  remedy  to 
recover  rents,  and  are  subject  to  the  same  liabilities  to  pay 
them,  as  their  testators  and  intestates.'^ 

Sec.  973.     Occupants  liable. 

The  occupant,  without  special  contract  of  any  lands,  is 
liable  for  the  rent  to  any  person  entitled  thereto. ^^ 

The  action  of  the  landlord  in  such  case  is  for  the  us3  and 
occupation. '° 

2*  Snyder,  4,089;  Wilson,  3,334.  29  Snyder,    4,094;    Wilson,   3,339; 

25  Snyder,    4,090;    Wilson,    3,325;       Kansas,  3,864,  identical. 

Kansas,    3,860,    identical.  so  Milliken  v.  Lockwood,  103  Pac. 

26  Snyder,  4,091;  Wilson,  3,336.  124;  Taylor's  Landlord  and  Tenant, 

27  Snyder,  4,092;  Wilson,  3,337.  Sec.  373;  Benton  v.  Beakey,  81  Pac. 

28  Snyder,  4,093;   Wilson,  3,338.  (Kan.)       196;      Martin     v.     Allen, 

74    Pac.    (Kan.)    249. 


§§  974-977         merwine's  trial  of  title  to  LuVnd.  680 

Sec.  974.    Joint  tenants. 

If  a  joint  tenant,  or  tenant  in  common,  or  tenant  in  co- 
parcenary, have,  by  consent,  management  of  the  estate,  and 
make  repairs  and  improvements  with  the  knowledge  and 
without  objection  of  his  cotenant  and  coparcener,  such  co- 
tenant  or  coparcener  will  be  required  to  contribute  ratably 
thereto.^^ 


Sec.    975.     Joint   tenant   may  recover   against   his   cotenant. 

A  joint  tenant,  or  tenant  in  common,  or  tenant  in  co- 
parcenary, may  maintain  an  action  against  his  cotenant,  or 
coparcener,  or  their  personal  representatives,  for  receiving 
more  than  his  just  proportion  of  the  rents  and  profits.^- 

Sec.  976.    Estate  in  remainder  or  reversion. 

A  person  seized  of  an  estate  in  remainder  or  reversion 
may  maintain  an  action  for  waste  or  trespass,  and  for  in- 
jury to  the  inheritance,  notwithstanding  an  intervening  estate 
for  life  or  years.^^ 

Sec.  977.     Rent  for  farm  land — Lien  on  crop. 

Any  rent  due  for  farming  land  is  by  the  statute  made  a 
lien  on  the  crop  growing  or  made  on  the  premises.  Such  lien 
may  be  enforced  by  action  and  attachment  therein,  as  pro- 
vided by  law.^* 

31  Snyder,  4,095 ;  Wilson,  3,340.  a   quantity   of  wheat  as   crop  rent, 

32  Snyder,  4,096;  Wilson,  3,341.  the  plaintiflf,  the  owner  of  the  land, 

33  Snyder,  4,007;  Wilson,  3,342;  alleged  and  testified  that  it  was 
Kansas,  3,867,  identical.  agreed  that  with   the   land   he   was 

34  Snyder,  4,098 ;  Wilson,  3,343 ;  to  furnish  defendant  wheat  for  seed, 
Kansas,  3,808,  identical ;  First,  etc  ,  and  to  receive  as  rental,  one-half  of 
V.  Rogers,  103  Pac.  (Okla.)  582.  the  crop.  Defendant  met  the  issue 
In  tliis  latter  case  it  was  held  tendered  by  a  general  denial,  and 
that  under  the  Arkansas  law,  one  offered  testimony  to  the  effect  that 
who  raises  a  crop  upon  the  land  of  under  the  agreem.ent  he  was  to  fur- 
another  for  a  part  of  the  crop,  is  nish  the  seed  and  give  the  plaintiff 
not  a  tenant,  but  is  a  cropper  or  a  rental  of  one-half  of  the  crop, 
laborer.      In    an    action    to    recover  and    that   he    purchased   the   wheat 


681  LANDLORD   AND    TENANT.  §§  978,  979 

The  landlord's  lien  will  reach  to  the  crop  grown  by  a  sub- 
lessee of  the  original  tenant.^^ 

The  following  terms  of  the  lease  will  not  divest  the  land- 
lord of  his  lien:  "to  be  paid  at  the  time  and  from  the  pro- 
ceeds of  the  first  sale  of  broom  corn  that  may  be  raised  by 
lessee,"  and  the  lien  of  the  landlord  in  such  case  will  take 
priority  over  a  chattel  mortgage,  given  to  secure  advance- 
ments to  pay  for  the  harvesting  of  the  crop.^^  And  when  the 
crop  is  still  on  the  leased  premises,  and  the  tenant  sells,  the 
lien  prevails  and  attaches  to  every  part  of  the  crop.  No 
writing  is  required  to  create  a  lien,  nor  need  it  be  recorded, 
and  the  lien  exists  independent  of  the  writ  of  attachment.^'' 

Sec.  978.    Share  of  crop  as  rent — Lessor's  rights  in. 

When  any  such  rent  is  payable  in  a  share  or  certain  pro- 
portion of  the  crop,  the  lessor  will  be  deemed  the  owner  of 
such  share  or  proportion,  and  may,  if  the  tenant  refuse  to 
deliver  him  such  share  or  proportion,  enter  upon  the  land 
and  take  possession  of  the  same,  or  obtain  possession  by 
action  of  replevin.^^ 

Sec.  979.     Purchaser  of  crop  liable  for  rent,  when. 

A  person  entitled  to  rent  may  recover  from  the  purchaser 
of  the  crop,  or  any  part  thereof,  with  notice  of  the  lien,  the 
value  of  the  crop  purchased,  to  the  extent  of  rent  due  and 
damages.^" 

from  plaintiflF  that  was  sown  on  tlie  Vac.    102;    Houghton    v.   Bauer,    70 

land.     As  the  only  substantial  con-  la.   314,   30  X.   W.   577. 

troversy    between    the    parties    was  se  Salina.    etc.,    v.    Burr,    52    Pac. 

who  furnished  the  seed,  it  was  error  (Kan.)     704;    Scully   v.   Porter,    57 

to  instruct  the  jury  that  the  burden  Kan.    322,    46    Pac.    313,    2    Kent's 

of  proof  was  upon  the  defendant  to  Com.  635. 

show  that  he  purchased  from  plain-  37  Scully  v.   Porter,   46   Pac.   313; 

tiff    the    wheat    which    was    sown.  Knowles   v.    Sells,    21    Pac.    (Kan.) 

Boyles  v.  Bradley,  101  Pac.    (Kan.)  102. 

477.  38  Snyder,  4,009 ;  Wilson,  3,344. 

35  Berry   v.    Berry,    55    Pac.    348-  39  Snyder,   4,100;    Wilson,    3,345; 

INewfert    v.     Ames,    26    Kan.    516;  Kansas,  3,870,  identical. 
Knowles  v.    Sells,   41   Kan.    171,  21 


§  980  merwine's  triai^  of  title  to  land.  682 

When  an  action  is  brought  under  this  statute  for  the  unpaid 
rent,  the  burden  of  proof  to  show  that  the  purchaser  bought 
the  crop  with  notice  of  the  lien,  lies  upon  the  plaintiff,  and 
actual  notice  of  the  lien  is  not  necessary,*'"  it  being  held  that, 
if  the  purchaser  has  knowledge  of  the  facts  which  would 
naturally  excite  inquiry,  and  which  would  reasonably  lead 
to  the  knowledge  of  the  lien,  it  is  his  duty  to  inquire,  and 
testimony  sufficient  to  require  inquiry  is  testimony  of  notice.* 

Sec.  980.    Landlord  may  attach,  when. 

"When  any  person  who  shall  be  liable  to  pay  rent  (whether 
the  same  be  due  or  not,  if  it  be  due  within  one  year  there- 
after, and  whether  the  same  be  payable  in  money  or  other 
things),  intends  to  remove,  or  is  removing,  or  has,  within 
thirty  days,  removed  his  property,  or  his  crops,  or  any  part 
thereof,  from  the  leased  premises,  the  person  to  whom  the 
rent  is  owing  may  commence  an  action  in  the  court  having 
jurisdiction ;  and  upon  making  affidavit  stating  the  amount 
of  rent  for  which  such  person  is  liable,  and  one  or  more  of 
the  above  facts,  and  executing  an  undertaking  as  in  other 
cases,  an  attachment  will  be  required  to  issue  in  the  same 
manner  and  with  the  like  effect  as  is  provided  by  law  in 
other  actions.^^ 

In  an  action  under  this  statute  the  practitioner  should  see 
to  it  that  the  affidavit  comes  within  the  provisions  of  the 
act,  and  the  proof  in  such  case  will  not  justify  levy  on 
crop  grown  on  other  lands.^- 

In  a  very  recent  decision,  construing  this  section  of  the  stat- 
ute under  consideration,  it  was  said  by  the  court  that  the  per- 
sons against  whom  the  statute  authorizes  attachment  proceedings 
to  be  brought  are  not  limited  by  the  language  of  the  statute 
to  those  who  are  liable  for  rents  on  farm  lands,  but  applies  to 
any  person  who  shall  be  liable  to  pay  rent,  and  who  is  removing 

<oMangum     v.     Stadel,     92     Pac.  4i  Snvdor,    4,101;    Wilson,    3,346; 

(Kan.)    1,093.  Kansas,    3,871,    identical. 

*  Ibid.  42Greely     v.     Greely,     73     Pac. 

(Okla.)    295. 


683  LANDLORD   AND   TENANT.  §  980 

or  intends  to  remove  his  property  or  his  crops,  or  any  part 
thereof,  from  the  leased  premises.    Not  only  a  removal  of  the 
crops  of  the  tenant,  but  the  removal  of  any  part  of  his  prop- 
erty from  the  leased  premises,  authorizes  the  issuance  of  the 
attachment.     The  lien  created  by  the  statute   (Snyder,  4098; 
Wilson,  3343),  does  not  apply  to  the  property  of  the  tenant 
other  than  the  crops  on  the  leased  premises.     If  it  was  in- 
tended that  the  attachment  provided  for  should  apply  only 
to  the  enforcement  of  the  lien  against  the  crops,  why  was 
the  removal  of  any  of  the  tenant's  property  other  than  his 
crops   made    a    ground    for    such    attachment?      And,    again, 
when  the  attachment  is  issued,  it  is  to  be  issued  in  the  same 
manner  and  has  the  same  effect,  as  provided  by  law  in  other 
actions.     Attachments  provided  for  under  the  general  statute 
on  attachments  require  the  sheriff  to  attach  any  property  of 
the  defendant  not  exempt   from  law  from  being  applied  to 
the  payment  of  plaintiff's  claim,  or  so  much  thereof  as  will 
satisfy  his  claim.     Said  section  of  the  statute  (Snyder,  4101; 
Wilson,   3346),   does  not  therefore  limit  the  levy  of  attach- 
ment to  the  property  upon  which  the  lien  is  created  by  said 
section  (Snyder,  4098;  Wilson,  3343),  but  authorizes  the  levy 
upon  any  property  of  the  tenant  not  exempt.     The  statute 
(Snyder,  4102;  Wilson,  3347),  provides  for  the  enforcement 
of  the   lien   created  by   the   statute    (Snyder,   4098;   Wilson, 
3343),  on  crops  for  rent  that  is  due.     That  the  attachment 
authorized  by  that  section  was  intended  only  as  a  procedure 
for  the  enforcement  of  the  lien  is  made  clear  by  the  provi- 
sions of  the  section  which  provides  that  the  order  or  attach- 
ment issued  thereunder  shall  be  levied  on  the  crops,  or  so 
much  thereof  as  shall  be  necessary  to  satisfy  the  plaintiff's 
claim.     This  limitation  is  nowhere  to  be  found  in  the  statute 
(Snyder,  4098;  Wilson,  3343),  and  we  think  that  the  inten- 
tion of  said  section  to   give  landlords  a  remedy  to   enforce 
the  payment  of  rents  due,  or  that  shall  be  due  them  within 
one  year,  when  the  tenant  is  removing  or  is  about  to  remove 


§§  981-983        merwine's  trial  op  title  to  land.  684 

his  property  from  the  premises,  is  so  clear  from  the  plain 
and  explicit  language  of  the  section  as  to  render  a  construc- 
tion thereof  unnecessary.*^ 

Sec.  981.     Attachment  to  enforce  lien  on  crop,  how  obtained. 

Under  an  action  to  enforce  a  lien  on  crops  for  rent  on 
farming  lands  the  affidavit  for  attachment  must  state  that 
there  is  due  from  the  defendant  to  the  plaintiff,  a  certain 
sum,  naming  it,  for  rent  on  farming  lands,  describing  the 
same,  and  that  the  plaintiff  claims  a  lien  on  the  crop  made  on 
said  lands.  Upon  making  and  filing  said  affidavit  and 
executing  an  undertaking  as  prescribed  in  the  preceding  sec- 
tion, an  order  of  attachment  is  required  to  issue  as  in  other 
cases,  and  to  be  levied  on  such  crop,  or  so  much  thereof  as 
may  be  necessary;  all  other  proceedings  in  such  attachment 
must  be  the  same  as  is  other  actions.** 

Sec.  982.     Courts — Jurisdiction  of. 

Justice  of  the  peace  and  county  courts  of  this  State  shall 
have  the  jurisdiction  of  all  actions  brought  under  the  fore- 
going statute  where  the  amount  claimed  does  not  exceed  the 
jurisdiction  of  said  courts  respectively.*^ 

Sec.  983.     Improvements — Taxes  on. 

That  all  improvements  put  on  leased  lands,  that  do  not 
become  a  part  of  the  realty,  are  required  to  be  assessed  to 
the  owner  of  such  improvement  as  personal  property,  and  the 
taxes  imposed  on  such  improvements  are  to  be  collected  by 
levy  and  sale  of  the  interest  of  such  owner,  the  same  as 
in  all  other  cases  of  the  collection  of  taxes  on  personal 
property.*** 

<3Tootlp,  otc,  V.  Floyd,  114  Pac.  Scully  v.  Porter,  46  Pac.  313;  Con- 

(Okla.)   200.  nell  v.  Kuykendall,  29  Kan.  708. 

44Sny(]or,    4,102;    Wilson,    3.347;  45  Snyder.    4,103;    Wilson,    3,348; 

Kansns,    3,872,    idontieal;    Groely    f.  Kansns,    3,873,    identical. 
Greely,   12   Okla.  659,  73  Pac.  295;  46  Snyder,  4^104;   Wilson,  3,349. 


685  LANDLORD    AND    TENANT.  §§  984-986 

Sec.  984.    Lease  must  be  in  writing. 

No  deed,  mortgage  or  other  conveyance  relating  to  real 
estate,  or  any  interest  therein  other  than  for  a  lease  for  a 
period  not  to  exceed  one  year,  shall  be  valid  until  reduced  to 
writing  and  subscribed  by  the  grantor.  And  no  deed,  mort- 
gage or  contract  relating  to  the  homestead  exempt  by  law, 
except  a  lease  for  a  period  not  to  exceed  one  year,  shall  be 
valid  unless  in  writing,  and  subscribed  by  both  husband  and 
wife  where  both  are  living  and  not  divorced,  except  to  the 
extent  hereinafter  provided.*^ 

Sec.  985.    When  husband  or  wife  may  lease  homestead. 

"Where  the  title  to  the  homestead  is  in  the  husband,  and 
the  wife  voluntarily  abandons  him  for  a  period  of  one  year, 
or  for  any  cause,  takes  up  her  residence  out  of  the  State, 
he  may  convey,  mortgage,  or  make  any  contract  relating 
thereto  without  being  joined  therein  by  her;  and  where  the 
title  to  the  homestead  is  in  the  wife,  and  the  husband  volun- 
tarily abandons  her,  or  from  any  cause  takes  up  his  residence 
out  of  the  State  for  a  period  of  one  year,  she  may  convey, 
mortgage,  or  make  and  contract  relative  thereto  without 
being  joined  therein  by  him.*^ 


Sec.  986.    Lease  valid  as  against  third  persons  only  when 
recorded. 

Except  as  hereinafter  provided,  no  acknowledgment  or 
recording  shall  be  necessary  to  the  validity  of  any  deed, 
mortgage,  or  contract  relating  to  real  estate,  as  between  the 
parties  thereto ;  but  no  deed,  mortgage,  contract,  bond,  lease, 
or  other  instrument  relating  to  real  estate  other  than  a  lease 
for  a  period  not  exceeding  one  year  and  accompanied  by 
actual    possession,    will    be    valid    as    against    third    persons 

47  Snyder,  1,187;  Wilson,  880.    As       national,    116    Pac.     fOkla.)     799. 
to   what   is    breach   of    covenant   of  ^s  Snyder,   1,189;   Wilson,  882. 

seizin  in  lease,  see  Brown  v.  Inter- 


§§  987-989         MER wine's  trial  of  title  to  land.  686 

unless  acknowledged  and  recorded  as  herein  provided;  except 
actual  notice  to  such  third  persons  will  be  equivalent  to  due 
acknowledgment  and  recording/" 

Sec.    987.    Notice — Classes — Actual — Constructive;    presump- 
tion of  constructive  notice. 

Notice  is  either  actual  or  constructive.  Actual  notice  con- 
sists in  express  information  of  the  fact.  Constructive  notice 
is  notice  imputed  by  law  to  a  person  not  having  actual  notice. 

Every  person  who  has  actual  notice  of  circumstances  suffi- 
cient to  put  a  prudent  man  upon  inquiry  as  to  a  particular 
fact,  and  who  omits  to  make  such  inquiry  with  reasonable 
diligence,  is  deemed  to  have  constructive  notice  of  the  fact 
itself.-'O 

Each  of  the  foregoing  statutory  provisions  as  to  the  notice 
applies  to  the  question  of  knowledge  when  applied  to  the 
lease.  The  placing  of  the  lease  upon  record  constitutes  con- 
structive notice,  and  other  lessors  are  bound  in  law  to  have 
knowledge  of  the  prior  lease,  even  when  they  have  no  actual 
knowledge  thereof. 

Sec.  988.     Lease  allowed  to  record,  when. 

No  deed,  mortgage  or  other  instrument  affecting  real  estate, 
will  be  received  for  record,  or  recorded,  unless  executed  and 
acknowledged  in  substantial  compliance  with  the  statute ;  and 
the  recording  of  any  such  instrument  not  so  executed  and 
acknowledged  shall  not  be  effective  for  any  purpose.* 

Sec.  989.    Lease  received  in  evidence,  when. 

All  instruments  affecting  real  estate,  executed  and  ac- 
knowledged in  substantial  compliance  with  the  statute,  will 

49  Snyder,  1.105;   Wilson,  888.  64  X.   W.   1,023;    Betts  v.   Letsche, 

50  Snyder,  2,!)45,  2.946,  2,947  and  1  S.  D.  182,  4G  N.  W.  193;  Weaver 
2,948;  Wilson,  2,788,  2,789,  2,790  v.  Tschetter,  1  S.  D.  205,  46  N.  W. 
and  2.791:  DiikoU  Code,  4,740,  201;  Meyer  v.  Elevator,' 128  S.  D.' 
4,741,  4,742  and  4,743;   Kansas,  etc.,  172,  80  N.  W.  189. 

V.    Sherman,    3    Okla.    204,    41    Pac.  *  Snyder,  1,208;  Wilson,  901. 

623;    Doran  v.  Daisy,  5  N.  D.   167. 


687  LANDLORD    AND   TENANT.  §§  990-992 

be  received  in  evidence  in  all  courts  without  other  proof  of 
their  execution;  and  in  all  cases  vrhere  copies  of  other  in- 
struments might  lawfully  be  used  in  evidence,  copies  of  the 
same  duly  certified  from  the  records  by  the  register  of 
deeds,  may  be  received  in  evidence ;  and  if  the  same  need 
not  be  recorded  to  be  valid  for  the  purpose  for  which  such 
evidence  is  offered,  a  copy  duly  verified  by  oath  or  affidavit 
of  any  person  knowing  the  same  to  be  a  true  copy,  may  be 
received  in  evidence. ^^ 

Sec.  990.     Requirements  as  to  writing  or  printing  of  lea^e. 

No  instrument  affecting  the  title  to  real  estate  shall  be 
filed  for  record,  or  recorded,  unless  plainly  written  or  printed, 
or  partly  written  or  partly  printed,  in  the  English  language." 

Sec.  991.     Tenant  estopped  from  denying  landlord's  title. 

It  is  a  familiar  rule  of  law  that  a  tenant  placed  in  pos- 
session by  his  landlord,  is  estopped  from  denying  his  land- 
lord's title.'3 

Sec.  992.     Form  for  farm  lease. 

This  Agreement,  made  this  day  of ,  19 — ,  by 

and  between  ,  party  of  the  first  part,  and  ,  party 

of  the  second  part : 

WITNESSETH,  that  for  and  in  consideration  of  the  covenants 
and  agreements  hereinafter  made,  the  party  of  the  first  part  has 
let,  leased  and  demised,  and  does,  by  these  presents  let,  lease 
and  demise  unto  the  party  of  the  second  part,  for pur- 
poses, for  a  term  of  years,  from  and  after  the  

day  of ,  19—,  the  following  described  tract  of  land  lying 

in  County,  Oklahoma,  to-wit:    (Here  describe  premises 

leased. ) 

51  Snyder,    1,209;    Wilson,    902.  But  he  may  show  that  the  landlord's 

52  Snyder,    1,210;    Wilson,    903.  title    has   expired   by    limitation    or 
ssPappe    V.    Trout,    3    Okla.    260,       by   operation  of   law   subsequent  to 

41    Pac.    397;    Hagar   v.    Wikoff,    2       the  beginning  of  his  tenancy.   Welch 

Okla.   580,   39   Pac.   281;    Hamill   v.       v.  Johnson,  —  Okla.  ,  112  Pac. 

Jalonick,  3  Okla.  223,  41  Pac.  139.      989. 


§  993  merwine's  trial  of  title  to  land.  688 

The  party  of  the  second  part  agrees  that  during  the  life  of 
this  lease . 

In  Witness  Whereof,  the  parties  hereto  have  hereunto  set 
their  hands  this day  of ,  19 — . 


State  of  Oklahoma, ,  County,  ss. : 

Before  me, ,  a in  and  for  said  county  and  State, 

on  this day  of ,  19 — ,  personally  appeared 

and  ,  to  me  known  to  he  the  identical  persons  who  exe- 
cuted the  within  and  foregoing  instrument,  and  acknowledged 
to  me  that  they  executed  the  same  as  their  free  and  voluntary 
act  and  deed  for  the  uses  and  purposes  therein  set  forth. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and 
official  seal  the  day  and  year  above  mentioned. 


My  commission  expires  .  Notary  Public. 

Sec.  993.     Form  for  lease  of  furnished  house. 

This  Instrument  of  Lease,  made  at ,  Oklahoma,  this 

day  of ,  19 — ,  by  and  between  ,  of , 

Oklahoma,  lessor,  and ,  of ,  Oklahoma,  lessee: 

WITNESSETH,  that  the  said  lessor,  in  consideration  of  the  rents 
and  covenants  hereinafter  stipulated  to  be  paid  and  performed 
by  said  lessee,  does  hereby  demise,  let  and  lease  unto  said  lessee, 
the  following  described  jiremises  in , County,  Okla- 
homa, to-wit:  (Here  describe  premises),  and  the  appurtenances 
thereunto  belonging,  and  also  all  the  furniture,  carpets,  dishes, 
crockery,  glassM^are,  kitchen  utensils  and  other  personal  prop- 
erty specified  in  the  schedule  hereto  attached,  marked  "Ex- 
hibit A"  and  made  a  part  hereof. 

To  Have  and  to  Hold  the  same  unto  the  said  lessee,  to  be 
used  by  said  lessee  as  a  dwelling,  and  for  no  other  purpose,  for 

a  term  of years,  beginning  on  the day  of , 

19 — ,  and  ending  on  the  day  of  ,   19 — ,  for  a 

yearly  rental  of  $ ,  payable  in  equal  monthly  installments 

of  $ each,  in  advance,  on  the  first  day=.of  each  and  every 


689  LANDLORD    AXD    TENANT.  §  993 

month  during  said  term,  at ,  in  the  city  of ,  Okla- 

Iioma,  or  such  other  place  in  said  city  as  the  lessor  may  direct. 

And  said  lessee  does  hereby  covenant  and  agree  with  said 
lessor,  his  heirs  and  assigns,  as  follows:  that  he  will  pay  said 
rents  at  the  time  and  place  and  in  the  manner  aforesaid;  that 
he  will  pay  all  bills  and  charges  for  water,  gas  and  electric 
current,  which  may  be  assessed  or  charged  against  the  occupants 
of  said  premises  during  said  term,  or  any  extension  thereof ;  that 
he  will  use  and  occupy  said  premises  and  said  furniture  in  a 
careful,  safe  and  proper  manner,  and  will  carefully  conduct  and 
guard  all  fires  that  may  be  inducted  therein;  that  he  will  not 
commit  or  suffer  to  be  committed  any  waste  therein ;  that  he  will 
not  use  or  occupy  said  premises  for  any  unlawful  purpose ;  that 
he  will  not  sell  or  permit  to  be  sold  on  said  premises,  during  said 
term,  spirituous,  vinous,  malt  or  any  intoxicating  liquors,  with- 
out the  written  consent  of  said  lessor;  that  he  will  not  assign 
this  lease,  or  underlet  said  premises,  or  any  part  thereof,  without 
the  written  consent  of  said  lessor ;  that  he  will  not  use  or  occupy 
said  premises,  or  permit  the  same  to  be  used  or  occupied,  for  any 
purpose  deemed  extra  hazardous  on  account  of  fire  or  otherwise ; 
that  he  will  make  no  alterations  or  additions  in  or  to  said  prem- 
ises without  the  written  consent  of  said  lessor;  that  he  will 
permit  said  lessor,  or  his  agents,  to  enter  upon  said  premises  at 
all  reasonable  times,  to  examine  the  condition  thereof;  that  he 
will  surrender  and  deliver  up  said  premises,  and  all  of  said 
furniture,  carpets,  dishes,  crockery,  glassware,  kitchen  utensils 
and  other  personal  property,  in  as  good  order  and  condition  as 
the  same  now  are,  reasonable  use  and  ordinary  wear  and  tear 
thereof,  and  damage  by  fire,  or  other  unavoidable  casualty  ex- 
cepted, and  that  he  will  replace  all  such  furniture  and  other 
articles  of  personal  property,  as  shall  be  broken,  damaged  or 
lost,  vrith  other  articles  of  equal  value  and  of  as  near  the  same 
pattern  as  possible. 

PRO'v^mED,  however,  that  if  said  rent,  or  any  part  thereof,  shall 
be  at  any  time  in  arrears  and  unpaid,  and  without  any  demand 
being  made  therefor,  or  if  said  lessee,  or  his  assigns,  fail  to  keep 
and  perform  any  of  the  covenants  or  agreements  of  this  lease, 


§  993  merwine's  trial  of  title  to  land.  690 

on  his  part  to  be  kept  and  performed,  or  if  said  lessee  shall  be 
adjudged  a  bankrupt,  or  make  an  assignment  for  the  benefit  of 
creditors,  or  if  the  interest  of  said  lessee  therein  adjudged  be 
sold  under  execution,  or  legal  process  thereunder,  it  shall  be 
"lawful  for  said  lessor,  his  heirs  and  assigns,  to  enter  into  said 
premises  again  and  have,  repossess  and  enjoy  the  same,  as  if  this 
lease  had  not  been  made,  and  thereupon,  this  lease,  and  every- 
thing therein  contained  on  the  part  of  the  said  lessor  to  be  done 
and  performed,  shall  cease,  determine  and  be  utterly  void,  with- 
out prejudice,  however,  to  the  right  of  the  lessor  to  recover  from 
said  lessee,  or  assigns,  all  rent  due  up  to  the  time  of  said  entry. 
In  case  of  any  such  default  and  entry  by  said  lessor,  the  said 
lessor  may  relet  said  premises,  for  the  highest  amount  obtain- 
able, and  may  recover  from  said  lessee  any  deficiency  between 
the  amount  so  obtained  and  the  amount  hereinbefore  reserved. 

And  Provided,  further,  that,  in  case  any  building  on  said 
premises,  or  any  part  thereof,  without  any  fault  or  neglect  of 
said  lessee,  shall  be  destroyed  or  so  injured  by  the  elements  or 
other  cause,  as  to  be  unfit  for  occupancy,  said  lessee  may  there- 
upon surrender  possession  of  said  premises  to  said  lessor,  and 
thereupon,  this  lease  shall  cease,  determine  and  be  utterly  void. 

And  the  said  lessor,  for  himself  and  for  his  heirs,  executors, 
administrators  and  assigns,  hereby  covenants  and  agrees  with 
said  lessee,  his  executors,  administrators  and  assigns,  that,  said 
lessee  paying  the  rent  and  keeping  and  performing  the  covenants 
of  this  lease  on  his  part  to  be  kept  and  performed,  said  lessee 
shall  peaceably  and  quietly  hold,  occupy  and  enjoy  said  prem- 
ises during  said  term,  without  any  let,  hindrance  or  molestation 
of  said  lessor  and  his  heirs,  or  any  person,  or  persons,  lawfully 
claiming  under  him  or  them. 

In  Witness  Whereof,  the  said  lessor  and  lessee  have  set  their 
hands  to  duplicates  here  of  on  the  day  of  ,  19 — . 


State  of  Oklahoma, ,  County,  ss. : 

Before  me, ,  a in  and  for  said  county  and  State, 

on  this day  of ,  19 — ,  personally^  appeared ■ 


691  LANDLORD   AND   TENANT.  §  994 

and ,  to  me  known  to  be  the  identical  persons  who  exe- 
cuted the  within  and  foregoing  instrument  and  acknowledged  to 
me  that  they  executed  tlie  same  as  their  free  and  voluntary  act 
and  deed  for  the  uses  and  purposes  therein  set  forth. 

In  Testimony  Whereof,  I  have  hereunto  set  my  hand  and 
official  seal  the  day  and  year  above  mentioned. 


]\Iy  commission  expires .  Notary  Public. 

Sec.  994.     Form  for  lease  of  apartment. 

This  Instrument  of  Lease,  executed  at  ,  Oklahoma, 

this day  of ,  19 — ,  by  and  between ,  lessor, 

and ,  lessee : 

"WITNESSETH,  that  said  lessor,  in  consideration  of  the  rents  and 
covenants  hereinafter  stipulated  to  be  paid  and  performed  by 
said  lessee,  does  hereby  demise,  let  and  lease  unto  said  lessee, 

suite  number ,  on story  of  apartment  house,  known 

as  ,  situated  at  number  street,  in  said  , 

County,  State  of  Oklahoma,  to  be  used  and  occupied  by 


the  lessee  as  a  dwelling,  and  for  no  other  purpose,  for  the  term 

of  years  from  the  day  of  ,  19 — ,  to  the 

day  of  ,  19 — ,  for  a  yearly  rental  of  $ , 

payable  in  equal  monthly  installments  of  $ each,  in  ad- 
vance, on  the  first  day  of  each  and  every  month,  during  said 

term,  at  the  office  of  said  lessor,  in  the  city  of ,  or  such 

other  place  in  said  city  of as  lessor  may  direct. 

And  said  lessee  does  hereby  covenant  and  agree  with  said 
lessor,  his  executors  and  assigns,  to  pay  said  rent  at  the  times 
and  place  and  in  the  manner  aforesaid;  to  pay  for  all  gas  and 
electric  current  used  in  said  premises,  and  all  expenses  incident 
to  the  furnishing  of  the  same ;  to  use  and  occupy  said  premises 
in  a  careful,  safe  and  proper  manner;  to  keep  the  windows 
thereof  in  a  clean  condition ;  to  not  drive,  or  permit  to  be  driven, 
any  picture  or  other  nails  through  the  woodwork  or  walls  of 
said  premises;  to  not  place,  or  permit  to  be  placed,  any  extra 
lock,  bolt  or  fastening  upon  any  door  or  doors  in  said  premises ; 
to  not  conduct  or  carry  on  any  business,  trade  or  occupation  in 


§  994  merwine's  trial  of  title  to  land.  692 

said  premises,  or  permit  the  same  to  be  so  conducted  or  carried 
on;  to  not  exhibit  any  sign  or  placard  on  any  window  or  other 
part  of  said  premises:  to  not  waste  any  water,  or  permit  the 
same  to  be  wasted ;  to  not  use  or  occupy  said  premises,  or  permit 
the  same  to  be  used  or  occupied  for  any  unlawful,  immoral  or 
improper  purpose,  or  for  any  purpose  which,  in  the  opinion  of 
said  lessor,  may  or  will  annoy  or  disturb  the  other  tenants  of 
said  apartment  house  or  the  neighborhood  thereof,  or  which,  in 
the  opinion  of  said  lessor,  may  or  will  be  detrimental  to  the 
reputation  of  said  premises  or  said  apartment  house;  to  not 
make  or  permit  to  be  made,  any  disturbance,  noise  or  anything 
whatsoever,  which,  in  the  opinion  of  the  said  lessor,  may  be 
detrimental  to  said  building  or  the  comfort  of  the  other  tenants 
thereof;  to  pay  for  all  repairs  made  necessary  by  reason  of  the 
abuse,  misuse  or  negligence  of  said  lessee ;  to  not  obstruct  the 
entrances,  passageways,  halls,  stairways  and  elevators  in  said 
building,  or  permit  the  same  to  be  obstructed,  nor  to  permit  any 
person,  or  children,  under  his  control,  to  loiter  or  play  therein, 
or  to  use,  or  permit  the  same  to  be  used  for  any  purpose  except 
for  ingress  and  egress  to  and  from  said  premises ;  to  not  assign 
this  lease  or  underlet  said  premises,  or  any  part  thereof,  without 
the  written  consent  of  said  lessor;  that  said  lessor  may  make 
reasonable  rules  and  regulations  not  inconsistent  herewith,  for 
the  protection  of  said  building  and  the  welfare  and  comfort  of 
all  the  tenants  thereof,  and  said  lessee  shall  conform  to  and  abide 
by  the  same ;  that  no  dog  shall  be  kept  or  harbored  in  said  prem- 
ises ;  to  permit  said  lessor  and  its  agent  to  enter  upon  said  prem- 
ises at  all  reasonable  times,  to  examine  the  condition  of  the  same ; 
to  make  repairs  on  and  care  for  the  same,  and  permit  said  lessor, 

or  its  agent,  at  all  reasonable  times  during  days  next 

preceding  the  expiration  of  said  term,  to  show  and  exhibit  said 

premises   to   prospective    tenants,   and   to   permit   days 

before  the  expiration  of  said  term,  the  customary  sign,  or  notice, 
"For  rent,"  to  be  placed  on  said  premises  and  remain  thereon 
without  molestation;  that  said  premises  are  now  in  good  repair, 
and  that  said  lessee  shall  surrender  and  deliver  up  said  premises 
at  the  end  of  said  term  in  the  same  good  or^er  and  condition, 


693  LANDLORD    AND    TENANT.  §  994 

including  all  plumbing,  gas,  water  and  sewer  fixtures  and  con- 
nections, reasonable  use  and  ordinary  wear  and  tear  thereof 
and  damage  by  fire  or  other  unavoidable  casualty  excepted,  and 
that  said  lessee  will  deliver  all  keys  to  said  lesser. 

Provided,  however,  that  if  said  rent,  or  any  part  thereof,  shall 
be  in  arrears  or  unpaid,  without  any  demand  therefor,  or  if 
said  lessee  shall  fail  and  neglect  to  keep  and  perform  any  of  the 
covenants  and  agreements  or  conditions  of  this  lease  on  his  part 
to  be  kept  and  performed,  it  shall  be  lawful  for  said  lessor,  its 
executors  and  assigns,  to  enter  upon  said  premises  and  again 
have,  repossess  and  enjoy  the  same,  as  if  this  lease,  and  every- 
thing therein  contained  on  the  part  of  said  lessor  to  be  done  and 
performed  shall  cease,  determine  and  be  utterly  void.  Without 
prejudice,  however,  to  the  right  of  the  lessor  to  recover  from 
said  lessee,  all  rent  due  up  to  the  time  of  such  entry.  In  case  of 
said  default  and  entry  by  said  lessor,  said  lessor  may  relet  said 
premises  for  the  remainder  of  said  term,  for  the  highest  amount 
obtainable,  and  may  recover  from  said  lessee  any  deficiency 
between  the  amount  so  obtained  and  the  amount  hereinbefore 
reserved. 

Provided,  however,  further,  in  ease  said  premises,  without 
any  fault  or  neglect  of  said  lessee,  shall  be  destroyed,  or  so 
injured  by  the  elements  or  other  cause,  as  to  be  unfit  for  occu- 
pancy, said  lessee  may  thereupon  surrender  the  possession  of  said 
premises  to  said  lessor,  and  thereupon  this  lease  shall  cease, 
determine  and  be  utterly  void. 

And  said  lessor,  for  itself,  its  executors,  administrators  and 
assigns,  hereby  covenants  and  agrees  with  said  lessee,  that,  said 
lessee  paying  the  rents  and  keeping  and  performing  the  con- 
ditions of  this  lease,  on  his  part  to  be  kept  and  performed,  said 
lessee  shall  peaceably  and  quietly  hold,  occupy  and  enjoy  said 
premises  during  said  term,  without  any  let,  hindrance  or  moles- 
tation by  said  lessor,  its  successors  or  assigns,  or  any  person 
or  persons  claiming  under  it,  or  them ;  that  it  will  furnish  said 
lessee  with  water  for  general  use,  and  steam  heat  through  its 
heating  plant  now  on  said  premises,  when  necessary,  from  the 
day  of to  the  day  of  ,  of  each  and  every 


§  995  merwine's  trial  of  title  to  land.  694 

year  during  said  term;  that  said  lessor  shall  not  be  liable  for 
any  stoppage  or  delays  in  so  doing,  not  caused  by  its  negligence 
or  fault,  and  that  said  lessor  shall  keep  the  halls,  passageways 
and  stairways  pertinent  to  said  premises  in  a  clean  condition, 
and  properly  heated  and  lighted. 

In  "Witness  Whereof,  the  said  lessor  has  caused  its  corpora- 
tion seal  to  be  hereto  affixed,  and  its  name  to  be  signed  to  dupli- 
cates hereof,  by  its  president,  and  the  said  has  set  his 

hand  to  duplicates  hereof,  this day  of ,  19 — . 

Company. 


Bij 


Its  President. 


State  of  Oklahoma, County,  ss. : 

Before  me, ,  a in  and  for  said  county  and  State, 

on  this day  of ,  19 — ,  personally  appeared , 

to  me  known  to  be  the  identical  person  who  subscribed  the  name 
of  the  maker  thereof  to  the  foregoing  instrument  as  its  presi- 
dent, and  acknowledged  to  me  that  he  executed  the  same  as  his 
free  and  voluntary  act  and  deed,  and  as  the  free  and  voluntary 
act  and  deed  of  said  corporation,  for  the  uses  and  purposes 
therein  set  forth. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and 
official  seal  the  day  and  year  above  mentioned. 


[Seal.]  Notary  Pichlic. 

My  commission  expires  . 

Sec.  995.     Form  for  lease  of  storeroom  with  chattel  mortgag-e 

clause. 

This  Agreement  of  Lease,  made  at  ,  Oklahoma,  tliis 

day  of ,  19 — ,  by  and  between  lessor,  and 

-,  of  ,  Oklahoma,  lessee 


"WITNESSETH,  that  Said  lessor  does  hereby  demise,  lease  and 
let  unto  said  lessee  the  following  described  premises  situated  in 
,  County,   Oklahoma,  described   as  follows:    the 


695  LANDLiORD   AND   TENANT.  §  995 

storeroom  on   floor  of  the   building  known   as  • 


building,  with  so  much  of  the  basement  thereunder  as  is  now 
partitioned  oflF;  said  storeroom  being  known  also  as  number 
,  street. 

To  Have  and  to  Hold  the  same  for  the  term  of years, 

commencing  on  the  day  of ,  19 — ,  and  ending  on 

the day  of  ,  19 — ,  yielding  and  paying  therefor 

a  yearly  rental  of  $ ,   in  equal  monthly  installments  of 

$ ,  each,   on  the  first  day  of  each   and  every  month  in 

advance,  during  said  term,  payable  at  the  office  of  said  lessor, 
in  said . 

And  said  lessee,  for  himself,  his  executors,  administrators  and 
assigns,  hereby  covenants  and  agrees  to  and  with  said  lessor,  his 
administrators,  executors  and  assigns,  that  he  will  pay  said 
rents  at  the  time  and  place  and  in  the  manner  aforesaid;  that 
he  will  pay  said  lessor  for  all  electric  current  furnished  by  said 
lessor  at  the  rate  customarily  charged  for  the  same ;  that  he  will 
furnish  all  lamps,  carbons  and  other  materials  needed  therefor; 
that  all  furniture  and  fixtures  which  may  be  placed  in  said 
apartment  shall  be  subject  to  the  approval  of  said  lessor,  and 
shall  be  of  a  style,  design  and  finish  to  harmonize  with  the  in- 
terior woodwork  and  decorations  of  said  storeroom ;  that  no  gaso- 
line, or  other  substance  or  material  which  may  increase  the 
danger  of  fire,  or  increase  the  premium  for  insurance  on  said 
building,  or  which  shall  emit  disagreeable  or  unpleasant  odors, 
shall  be  kept  or  used  on  said  premises;  that  all  awnings  placed 
on  said  premises  shall  be  subject  to  the  approval  of  said  lessor; 
that  he  will  use  and  occupy  said  premises  in  a  careful,  safe  and 
proper  manner;  that  he  will  not  commit  or  suffer  any  waste  to 
be  committed  thereon ;  that  he  will  not  use  or  occupy  said  prem- 
ises for  any  unlawful  purpose,  and  that  he  will  conform  to  and 
obey  all  laws  of  the  State  of  Oklahoma,  and  all  ordinances  of 

the  city  of  ,  respecting  said  premises,  and  the  use  and 

occupation  thereof;  that  he  will  not  sell,  or  permit  to  be  sold  on 
said  premises,  during  said  term,  spirituous,  vinous,  malt,  or  any 
intoxicating  liquors,  without  the  consent  of  said  lessor;  that  he 
will  not  assign  this  lease  nor  underlet  said  premises,  or  any  part 


§  995  merwine's  trial  of  title  to  land.  696 

thereof,  without  the  written  consent  of  said  lessor;  that  he  will 
not  use  or  occupy  said  premises,  nor  permit  the  same  to  be  used 
or  occupied  for  any  business  or  purpose,  deemed  extra  hazard- 
ous on  account  of  fire  or  otherwise ;  that  he  will  make  no  altera- 
tions or  additions  in  or  to  said  premises  without  the  written 
consent  of  said  lessor;  that  he  will  permit  said  lessor,  by  its 
agents,  to  enter  upon  said  premises  at  all  reasonable  times  to 
examine  the  condition  of  the  same;  that  he  will  surrender  and 
deliver  up  said  premises  at  the  end  of  said  term  in  as  good  order 
and  condition  as  the  same  now  are,  or  may  be  put  by  said  lessor, 
reasonable  use,  and  natural  wear  and  tear  thereof,  and  damage 
by  fire,  or  other  unavoidable  casualty,  excepted. 

Provided,  however,  that  if  said  rent,  or  any  part  thereof,  shall 
at  any  time  be  in  arrears  or  unpaid,  and  without  any  demand 
being  made  therefor,  or  if  said  lessee,  or  his  heirs,  shall  fail  to 
keep  and  perform  any  of  the  covenants,  agreements  or  conditions 
of  this  lease  on  his  part  to  be  kept  and  performed,  or  if  said 
lessee  shall  be  adjudged  a  bankrupt,  or  shall  make  an  assign- 
ment for  the  benefit  of  his  creditors,  or  if  the  interest  of  said 
lessee  adjudged  therein  shall  be  sold  under  execution,  or  other 
legal  process,  said  lessor,  his  executors,  administrators  or  assigns, 
may  enter  in  and  upon  said  premises,  and  again  have,  repossess 
and  enjoy  the  same  as  if  this  lease  had  not  been  made,  and  there- 
upon this  lease  and  everything  herein  contained,  on  the  part  of 
said  lessor  to  be  kept  and  performed,  shall  cease,  determine  and 
be  utterly  void;  without  prejudice,  however,  to  the  right  of  the 
lessor  to  recover  from  said  lessee,  or  heirs,  all  rent  due  up  to  the 
time  of  such  entry.  In  case  of  any  such  default  and  entry  by 
said  lessor,  said  lessor  may  relet  said  premises  for  the  remainder 
of  said  term  for  the  highest  rent  obtainable,  and  may  recover 
from  said  lessee,  any  deficiency  between  the  amount  so  obtained 
and  the  amount  of  rent  hereinbefore  reserved. 

And  said  lessor,  for  himself,  his  executors,  administrators  and 
assigns,  hereby  covenants  and  agrees  wdth  said  lessee,  his  execu- 
tors, administrators  and  assigns,  that  said  lessor  shall  furnish 
steam  heat  and  water  for  said  premises  without  additional  charge 
therefor,  and  that  it  will  furnish  electric  current  to  said  lessee 


697  LANDLORD    AND    TENANT.  §  995 

at  the  rate  customarily  charged  therefor,  and  will  furnish  all 
fixtures  for  electric  lighting,  not  including  lamps  or  carbon,  and 
that,  said  lessee  paying  the  rents  and  performing  the  covenants 
of  this  lease  on  his  part  to  be  performed,  said  lessee  shall  quietly 
occupy  and  enjoy  said  premises,  during  said  term,  without  any 
let,  hindrance  or  molestation  by  any  persons  whomsoever;  and 
that,  at  the  expiration  of  said  term,  said  lessee  may  remove  all 
the  trade  fixtures  of  said  lessee  which  can  be  removed  without 
injury  to,  or  defacement  of,  said  premises. 

And  said  lessee  does  hereby  bargain,  sell  and  convey  to  said 
lessor,  all  the  furniture,  counters,  showcases,  shelving  and  other 
fixtures  of  said  lessee,  which  may  be  placed  on  said  premises 
as  security  for  the  rent  hereinbefore  specified,  to  be  paid,  with 
full  powder  and  authority  to  said  lessor,  if  any  installment  or 

installments  of  rent  shall  be  and  remain  unpaid  for days, 

or  more,  after  the  same  is  due,  as  hereinbefore  specified,  to  enter 
upon  said  premises  and  take  possession  of  said  personal  prop- 
erty, and  sell  the  same  at  public  or  private  sale,  and  out  of  the 
proceeds  to  deduct  all  rents  due,  and  the  costs  of  such  taking 
possession  and  sale,  and  render  the  overplus,  if  any,  to  said 
lessee. 

In  Witness  "Whereof,  said  lessor  and  said  lessee  have  signed 
their  names  to  duplicates  hereof,  the  day  and  year  first  above 
written.  — , 


State  of  Oklahoma, County,  ss  ; 

Before  me, ,  a in  and  for  said  county  and  State, 

on  this day  of ,  19 — ,  personally  appeared , 

to  me  known  to  be  the  identical  person  who  executed  the  within 
and  foregoing  instrument,  and  acknowledged  to  me  that  he 
executed  the  same  as  his  free  and  voluntary  act  and  deed,  for  the 
uses  and  purposes  therein  set  forth. 

Witness  my  hand  and seal  the  day  and  year  above  set 

forth.  , 

[Seal.]  Notary  Public. 

]\Iy  commission  expires . 


§  996  merwine's  trial  op  title  to  land.  698 

Sec.  996.     Form  for  assignment  of  lease,  indorsed  on  instru- 
ment. 

In  Consideration  of  $ ,  paid  by ,  receipt  of  which 

is  hereby  acknowledged,  the  within  named hereby  sells, 

assigns,  transfers  and  sets  over  unto  the  said the  within 

instrument  of  lease,  and  all  his  estate,  title  and  interest  in  and 
to  the  same,  and  the  premises  therein  described. 

To  Have  and  to  Hold  the  same   from   the  day  of 

• ,  19 — ,  for  the  residue  of  the  full  term  thereof,  subject, 

however,  to  all  the  covenants,  provisions,  rents  and  conditions 

therein  contained.     Said  further  covenants  that  he  has 

good  right  to  assign  the  same  with  the  consent  of  the  lessor,  and 
that  the  interest  hereby  assigned  is  free  and  clear  from  all  in- 
cumbrances. 

And  in  consideration  of  said  assignment,  and  consent  thereto 

of  said   lessor,   ,   the   said   hereby    assumes    and 

agrees  to  pay  all  rents  due  from  and  after  the  day  of 

■ ,  19 — ,  and  to  beep  and  perform  all  the  covenants,  agree- 
ments and  conditions  of  said  lease  on  the  part  of  said  lessee  to 
be  kept  and  performed. 

In  Witness  Whereof,  said and have  hereunto 

set  their  hands  the day  of ,  19 . 


State  of  Oklahoma,  County,  ss. : 

Before  me, ,  a in  and  for  said  county  and  State, 

on  this day  of ,  19—,  personally  appeared , 

to  me  known  to  be  the  identical  person  who  executed  the  within 
and  foregoing  assignment  of  lease,  and  acknowledged  to  me  that 
he  executed  Ihe  same  as  his  free  and  voluntary  act  and  deed 
for  the  uses  and  purposes  therein  set  forth. 

Witness  my  hand  and seal  the  day  and  year  above  set 

forth. 

[^^^^^-]  Notary  Public. 

My  commission  expires ^^. 


699  LANDLORD   AND    TENANT.  §  997 

CONSENT    OF    LESSOR. 
I  hereby  consent  to  the  foregoing  assignment  of  the  within 
lease  to  said ,  provided,  however,  that  no  further  assign- 
ment of  said  lease,  or  subletting  of  said  premises,  or  any  part 
thereof,  shall  be  made  without  my  written  consent. 


County,  Oklahoma,  ,  19 — . 


Sec.  997.     Form  for  ninety-nine  year  lease  renewable  forever. 

This  Indenture,  made  this  day  of  ,  19 — ,  by 

and  between  and ,  husband  and  wife,  herein  des- 
ignated parties  of  the  first  part,  and  ,  hereinafter  desig- 
nated party  of  the  second  part : 

WITNESSETH,  that  tlic  said  parties  of  the  first  part,  and  each 
of  them,  in  consideration  of  the  rents  and  covenants  hereinafter 
contained,  by  said  second  party,  his  heirs,  personal  representa- 
tives and  assigns,  to  be  paid,  kept  and  performed,  hereby  grant, 
demise,  lease,  release  and  f armlet  to  the  party  of  the  second  part, 
his  heirs,  personal  representatives  and  assigns,  for  a  term  of 

ninety-nine  years,  renewable  forever,  from  the  day  of 

,   19 — ,  the  following   described   real  estate,  situated  in 

, County,  in  the  State  of  Oklahoma,  in  the  city  of 

,  more  particularly  bounded     and  described  as  follows, 


to-wit :  (Here  describe  premises.) 

To  TLate  AND  TO  Hold  said  premises  with  all  privileges  and 
appurtenances  thereunto  belonging,  unto  said  party  of  the 
second  part,  his  heirs,  personal  representatives  and  assigns,  for 

and  during  the  term  of  ninety-nine  years,  from  the  day 

of ,  19 — ,  the  same  to  be  renewable  forever  upon  the  terms 

and  conditions  hereinafter  set  forth,  provided,  said  party  of  the 
second  part,  his  heirs,  personal  representatives  and  assigns, 
yielding   and   paying  therefor,   during   said   term,   the   sum   of 

$ per  annum,  lawful  money  of  the  United  States,  the 

same  to  be  paid  on  the day  of ,  each  year,  during 

the  continuance  of  this  lease,  all  of  which  rentals  hereunder  and 
all  payments  hereunder  shall  be  paid  at  the  office  of ,  in 


§  997  merwine's  trial  of  title  to  land.  700 
,  Oklahoma,  or  to  such  person,  or  at  such  other  place  in 


said  city  as  may  from  time  to  time  be  designated  by  said  parties 
of  the  first  part,  or  those  succeeding  to  their  title,  and  if  the 
day  of  any  month  on  which  any  installment  of  rents  herein  pro- 
vided for,  is  to  become  due  and  jjayable,  should  happen  to  be  a 
legal  holiday  or  Sunday,  then  such  rents  shall  become  due  and 
payable  on  the  day  succeeding. 

Said  party  of  the  second  part,  his  heirs,  personal  representa- 
tives and  assigns,  covenants  and  agrees  to  and  with  the  parties 
of  the  first  part,  tlieir  heirs,  personal  representatives  and  as- 
signs', that  he,  or  they,  will  at  all  times  during  the  continuance 
of  this  lease,  comply  with  all  orders,  requirements  and  regula- 
tions of  the  city  of  ,  as  to  fire  escapes,  and  with  all  re- 
quirements and  regulations  of  insurance  companies  to  secure 
the  cheapest  rate  of  insurance  possible,  and  that  he,  or  they,  will 
pay  all  expenses  connected  with  such  requirements  and  regula- 
tions, whether  the  same  exist  now  or  liereaf ter ;  that  he,  or  they, 
will  keep  the  buildings  and  improvements  which  now  are,  or 
may  hereafter  be  erected  on  said  premises,  fully  insured  against 
loss  by  fire  or  lightning,  in  and  by  good,  solvent  insurance  com- 
panies, to  the  satisfaction  of  the  parties  of  the  first  part,  in  a 

sum  not  less  than  $ ,  loss,  if  any,  under  said  policies  to  be 

made  payable  to  the  parties  of  the  first  part,  their  heirs,  per- 
sonal representatives  and  assigns ;  that  said  policies  shall  be  held 
by  ihe  parties  of  the  first  part,  their  heirs,  personal  representa- 
tives and  assigns ;  that  all  premiums  on  said  policies  shall  at  all 
times  during  this  lease,  be  paid  by  the  party  of  the  second  part, 
his  heirs,  personal  representatives  and  assigns,  and  that,  should 
any  loss  or  injury  occur  to  said  premises,  the  money  paid  for 
said  loss  by  any  such  insurance  company,  or  companies,  issuing 
said  policies,  shall  be  expended  by  the  parties  of  the  first  part 
herein,  first,  toward  paying  the  rentals  hereunder,  and  other 
charges  required  hy  tliis  lease  to  be  paid  by  the  party  of  the 
second  part,  his  iicirs,  personal  representatives  and  assigns 
herein,  and,  secondly,  toward  the  repairing  of  the  buildings 
thereof,  or,  in  case  of  the  destruction  of  the  buildings  thereof, 
the   erection   of  new  buildings  on  said   real   estate;   but  it   is 


701  LANDLORD   AND    TENANT.  §  997 

expressly  understood  and  agreed  by  the  parties  hereto,  their 
heirs,  personal  representatives  and  assigns,  that,  in  the  event 
said  building  is  so  destroj^ed  by  fire,  the  parties  of  the  first  part, 
or  those  succeeding  to  their  title,  should  not  be  required  to  use 
any  money  or  funds  of  their  own,  to  replace  said  building  on 
said  premises  other  than  tlie  moneys  that  may  be  paid  them, 
their  heirs,  personal  representatives  and  assigns,  under  said 
policies  of  insurance,  as  aforesaid,  after  deducting  such  rentals 
and  other  charges  as  aforesaid. 

The  said  party  of  the  second  part,  for  himself,  his  heirs,  per- 
sonal representatives  and  assigns,  covenants  and  agrees  with  the 
parties  of  the  first  part,  their  heirs,  personal  representatives  and 
assigns,  that,  should  any  insurance  money  paid  under  any  loss 
by  fire  or  other  casualty,  be  not  sufficient,  after  the  payment  of 
said  rents  and  other  fixed  charges,  as  aforesaid,  to  fully  repair 
said  building,  or  to  erect  new  buildings  thereon,  then,  said  party 
of  the  second  part,  his  heirs,  personal  representatives  and  as- 
signs, will  at  his  o-^^ti  or  their  own  additional  expense  and  cost, 
repair  and  maintain  said  building,  or  buildings,  in  as  good  con- 
dition as  the  same  are  now  in,  over  and  over  again,  if  necessary, 
should  like  injuries  or  destruction  occur  by  fire  or  otherwise,  it 
being  the  intent  of  the  parties  hereto,  their  heirs,  personal  rep- 
resentatives and  assigns,  that  the  said  second  party,  his  heirs, 
personal  representatives  and  assigns,  shall,  at  all  times,  keep  the 
building,  or  buildings  on  said  premises  in  as  good  condition  as 
the  same  now  are  in,  whether  the  same  be  destroyed  or  injured 
by  fire  or  otherwise. 

The  party  of  the  second  part,  for  himself,  his  heirs,  personal 
representatives  and  assigns,  agrees  to  and  with  the  parties  of 
the  first  part,  their  heirs,  personal  representatives  and  assigns, 
that  he,  or  they,  will  at  all  times  during  this  lease,  or  any  re- 
newal, or  renewals  thereof,  keep  the  buildings  and  improvements 
on  said  premises  in  as  good  condition  and  repair  as  the  same 
may  be  placed  at  the  execution  hereof;  that  he,  or  they,  will,  on 
the  execution  of  this  lease,  give  bond  to  the  said  parties  of  the 
first  part,  their  heirs,  personal  representatives  and  assigns,  in 
the  sum  of  $ ,  with  good  and  sufficient  security,  to  the 


§  997  merwine's  trial  of  title  to  land.  702 

satisfaction  of  the  parties  of  the  first  part,  their  heirs,  personal 
representatives  and  assigns,  for  the  prompt  payment  of  the 
rentals  hereunder,  and  other  sums  on  his  part,  or  their  part,  to 
be  paid  hereunder,  and  that  said  bond  will  be  renewed  each  year 

in  the  same  manner  on  the  day  of ,  19 — ,  during 

said  term,  but  the  taking  of  said  bond  shall  not  constitute  or  be 
a  waiver  of  the  forfeiture  hereinafter  contained. 

The  party  of  the  second  part,  for  himself,  his  heirs,  personal 
representatives  and  assigns,  covenants  and  agrees  with  the 
parties  of  the  first  part,  their  heirs,  personal  representatives  and 
assigns,  promptly  to  pay  and  discharge,  when  the  same  become 
due  and  payable,  the  rents,  taxes,  assessments,  water  rents,  in- 
surance, charges  and  all  other  moneys  to  be  paid  hereunder,  and 
duly  and  promptly  to  do  and  perform  all  matters  and  obliga- 
tions to  be  done  and  performed  under  the  terms  and  provisions 
of  this  lease,  by  him,  his  heirs,  personal  representatives  and 
assigns,  during  the  term  herein  granted,  and  any  and  all  renew- 
als hereof,  and  that,  if  he,  or  his  heirs,  personal  representatives 
or  assigns,  fail  to  pay  said  rents,  taxes,  assessments,  water  rents, 
insurance  and  charges,  as  aforesaid,  when  and  as  the  same  re- 
spectively become  due  and  payable  from  time  to  time,  the  parties 
of  the  first  part,  their  heirs,  personal  representatives  and  assigns, 
or  any  of  them,  may  pa}^  the  same,  and  to  secure  the  sum  so 
paid,  and  also,  the  better  to  secure  the  payment  of  the  rents 
herein  reserved  and  the  performance  of  the  covenants  herein 
contained,  by  the  party  of  the  second  part,  his  heirs,  personal 
representatives  and  assigns,  to  be  kept  and  performed,  the  said 
parties  of  the  first  part,  their  heirs,  personal  representatives  and 
assigns,  shall  respectively  have,  and  there  is  reserved  to  them 
respectively,  a  first  lien,  superior  to  any  and  all  others,  upon 
the  term  hereby  created,  and  renewals  thereof,  on  the  real  estate 
hereinbefore  described,  upon  every  right  and  interest  of  the 
party  of  the  second  part,  his  heirs,  personal  representatives  and 
assigns,  in  and  to  the  premises  herein  described,  for  the  rents 
herein  reserved,  to  them,  respectively,  and  for  all  taxes,  assess- 
ments, water  rents,  insurance  and  charges  paid  b}^  them  re- 
spectively,  or  any  of  them,   and   for  the   performance  of   the 


703  LANDLORD   AND    TENANT.  §  997 

covenants  and  conditions  herein  contained,  the  reservation  of 
which  lien  shall  not  constitute,  or  be  a  waiver  of  the  right  of 
forfeiture  hereinafter  reserved. 

It  is  further  stipulated  and  agreed  hy  and  between  the 
parties  hereto,  for  themselves,  their  heirs,  personal  representa- 
tives and  assigns,  that  if  any  installment  of  rent  falling  due 
under  the  provisions  of  this  lease,  or  if  any  taxes,  assessments, 
water  rents,  insurance,  charges  or  other  sum,  or  sums,  to  be 
paid  hereunder,  by  said  party  of  the  second  part,  his  heirs, 
personal   representatives    and   assigns,   be   not    fully   paid    and 

discharged  when  due,  or  within days  thereafter,  or  if 

the  party  of  the  second  part,  his  heirs  personal  representatives 

and  assigns,  shall  fail  or  neglect  for  days  to  perform 

any  of  the  covenants  herein  contained,  on  the  part  of  him,  or 
them,  to  be  kept  and  performed,  it  shall  be  lawful  for  said 
parties  of  the  first  part,  their  heirs,  personal  representatives  and 
assigns,  without  any  demand  being  made  for  said  rent,  or  any 
portion  thereof,  so  in  arrears,  or  for  the  payment  of  said  taxes, 
assessments,  water  rents,  insurance  and  charges,  or  other  money 
or  moneys,  to  be  paid  by  the  party  of  the  second  part,  or  his 
successors  in  title  and  interest  to  be  paid,  or  for  the  perform- 
ance of  any  of  the  covenants  herein  contained  on  the  part  of 
said  party  of  the  second  part,  his  heirs,  personal  representatives 
and  assigns,  to  be  kept  and  performed,  or  for  any  sum,  or  sums, 
which  may  have  been  paid  by  the  parties  of  the  first  part,  their 
heirs,  personal  representatives  and  assigns,  on  account  of  taxes, 
assessments,  water  rents,  insurance  and  other  charges  upon  said 
leased  premises,  all  demand  in  each  and  every  of  said  respective 
amounts,  and  as  to  each  and  every  of  the  foregoing  matters 
being  expressly  waived  by  the  party  of  the  second  part,  his 
heirs,  personal  representatives  and  assigns,  in  the  said  premises 
herein  demised,  by  the  parties  of  the  first  part,  or  any  part 
thereof,  in  the  name  of  the  whole,  to  re-enter,  repossess  and 
enjoy  the  same,  as  by  their  former  estate  herein,  anything 
herein  contained  to  the  contrary  notwithstanding,  and  this  in- 
denture, at  the  option  of  the  parties  of  the  first  part,  their  heirs, 
personal  representatives  and  assigns,  as  to  the  premises  herein- 


§  997  merwine's  trial  of  title  to  land.  704 

before  described  and  owned  by  them  in  fee  simple,  shall  be  void 
as  to  the  parties  of  the  first  part,  their  heirs,  personal  represen- 
tatives and  assigns  and  respective  successors  in  title,  as  to  all 
the  stipulations  on  their  respective  parts,  and  their  term  hereby 
created,  and  any  and  all  renewals  thereof  as  to  the  premises  so 
forfeited,  shall  cease,  determine  and  be  utterly  void,  and  full 
possession  of  said  demised  premises,  and  all  the  buildings,  im- 
provements and  appurtenances  thereof  shall  thereupon  be  yielded 
up  and  delivered  to  the  said  parties  of  the  first  part,  or  those 
succeeding  to  their  title  and  estate  therein. 

The  parties  of  the  first  part,  for  themselves,  their  heirs,  per- 
sonal representatives  and  assigns,  covenant  and  agree  with  the 
party  of  the  first  part,  his  heirs,  personal  representatives  and 
assigns,  that  the  title  to  said  property  hereby  leased  by  the 
parties  of  the  first  part,  is  free,  clear  and  unincumbered,  and 
that  the  said  party  of  the  second  part,  or  those  succeeding  to  his 
right,  faithfully  observing  and  performing  all  the  covenants  and 
obligations  of  this  lease,  on  his  or  their  parts  to  be  observed  and 
performed,  shall  peaceably  have,  hold,  occupy  and  enjoy  the 
said  premises,  so  owned  and  leased  by  the  said  parties  of  the  first 
part,  for  the  term  of  this  lease,  and  any  and  all  renewals  of  the 
same,  as  against  the  lawful  claims  of  all  persons  whomsoever, 
and  that  at  the  expiration  of  the  term  hereby  granted,  there 
shall  be  executed  and  delivered  on  request  therefor,  to  the  person 
or  persons  then  possessed  of  said  second  party's  right,  under  this 
lease,  a  new  lease  for  said  premises  owned  as  aforesaid  by  the 
parties  of  the  first  part,  for  a  further  term  of  ninety-nine  years, 
to  commence  from  the  expiration  of  the  term  hereby  created, 

at  and  with  a  rental  of  $ ,  which  shall  be  payable  to  said 

parties  of  the  first  part,  their  heirs,  personal  representatives  and 
assigns,  payable  yearly  in  advance  as  hereinbefore  provided,  to 
the  parties  entitled  thereto,  as  aforesaid,  and  subject  to  the  same 
terms  and  conditions  as  contained  in  this  lease,  and  that  again, 
upon  the  expiration  of  said  second  term,  there  shall  be  executed 
and  delivered  a  like  lease,  and  so  on  from  time  to  time  forever, 
at  the  expiration  of  every  such  renewal  lease,  and,  in  case  of 
failure  or  neglect  to  execute  and  deliver  upon  request,  any  or 


705  LANDLORD    AND    TENANT.  §  998 

every  of  such  renewals  of  .this  lease,  the  party  of  the  second  part, 
his  heirs,  personal  representatives  and  assigns,  shall  have,  hold 
and  occupy  said  premises  hereinabove  leased,  granted  and  de- 
mised, at  the  yearly  rental  of  $ ,   payable  annually   in 

advance,  subject  to  all  the  other  terms  and  conditions  of  this 
lease,  the  same  as  if  said  renewal,  or  renewals  had  been  from 
time  to  time  executed  and  granted  as  herein  provided. 

In  Testimony  Whereof,  the  parties  hereto  have  hereunto  set 
their  hands  the  day  and  year  first  above  herein  w^ritten. 


Parties  of  the  First  Part. 

Party  of  the  Second  Part. 

Stat3  of  Oklahoma, County,  ss. : 

Before  me, ,  a in  and  for  said  county  and  State, 

on  this day  of ,  19—,  personally  appeared ■ 

and ,  to  me  known  to  be  the  identical  persons  who  executed 

the  within  and  foregoing  instrument,  and  acknowledged  to  me 
that  they  executed  the  same  as  their  free  and  voluntary  act  and 
deed,  and  for  the  uses  and  purposes  therein  set  forth. 

Witness  my  hand  and seal  the  day  and  year  first  above 

written.  ■  » 

[Seal.]  Notary  Public. 

My  commission  expires . 

Sec.  998.     Form  of  petition  by  landlord  to  recover  lien  on 
crop  sold  by  tenant  to  purchaser  with  notice. 

In Court,  County,  State  of  Oklahoma. 


vs. 


-,  Plaintiff, 
-,  Defendant. 


No. 


PETITION. 

Comes  now  ,  and,  for  his  petition  against  ,  de- 
fendant herein,  alleges  and  states: 

1.    That  on  the  day  of ,  19—,  he  leased  to  one 

the  following  described  real  estate,  situated  in  


§  999  merwine's  trial  of  title  to  land.  706 

County,  State  of  Oklahoma,  to-wit :  (Here  describe  real  estate), 

for  the  term  of years,  from  and  after  the day  of 

,  19 — ,  for  which  lessee  was  to  pay  plaintiff  the  sum  of 

$ ,  at  the  times  and  in  the  manner  following,  to-wit:  (Here 

set  forth  terms  of  payment.) 

2.  That  the  said  lessee  took  possession  under  said  lease,  and 
harvested  on  said  land  the  following  crops:  (Here  describe  crops 
in  controversy),  and  sold  the  same  to  the  defendant,  who,  at  the 
time,  had  knowledge  that  said  lessee  had  not  paid  plaintiff  any 
of  the  consideration  in  said  lease.  Said  crops  so  sold  by  said 
lessee  and  purchased  by  defendant  were  of  the  value  of  $ , 

WnEREPORE,  plaintiff  prays  judgment  against  said  defendant 

for  the  sum  of  $ ,  and  for  such  other  relief  to  which  he 

may  be  entitled,  , 

Attorney  for  Plaintiff. 

Sec.  999.    Form  for  petition  replevying  land — Lord's  share 
of  crop. 

In  Court,  County,  State  op  Oklahoma. 

,  Plaintiff, 


vs.  No. 
,  Defendant. 


PETITION. 

Plaintiff  says  that  on  or  about  the  day  of  , 

19 — ,  in  this  county  and  State,  the  defendant  wrongfully  de- 
tained from  him  and  still  detains  from  him,  the  following  goods 
and  chattels,  to-wit:  (Here  describe  crops  and  give  value)  ;  that 
said  goods  and  chattels  belong  to  plaintiff  as  his  share  of  the 
crop  of  grain  grown  on  plaintiff's  farm;  that  plaintiff  is  the 
owner  of  said  goods  and  chattels,  and  is  entitled  to  the  immediate 
possession  thereof;  that  the  defendant,  though  plaintiff  has  de- 
manded possession  thereof,  refuses  to  deliver  plaintiff  possession 
thereof. 

Wherefore,  plaintiff  prays  that  said  goods  and  chattels  be 
given  into  his  possession,  or  the  value  of  the  same  in  lieu  of  said 


707  LANDLORD  AND  TENANT.         §  §  1000,  1001 

possession,  and  that  he  may  have  judgment  accordingly,  and  for 

the  costs  of  this  suit.  , 

Attorney  for  Plaintiff. 

Sec.  1000.    Form  for  afl&davit  for  replevin  in  such  case. 
In  Court,  County,  State  of  Oklahoma. 


vs. 


-,  Plaintiff, 
-,  Defendant. 


No. 


State  of  Oklahoma, County,  ss. : 

,  being  duly  sworn,  says  that  he  is  the  owner  and  en- 
titled to  the  immediate  possession  of  the  following  described 
property,  of  the  actual  value,  as  follows,  to-wit  (Here  give  de- 
scription of  property  and  the  actual  value  of  each),  all  of  the 

aggregate  and  actual  value  of  $ ;  that  said  property  is 

wrongfully  detained  from  him  by  the  defendant ;  that  said  prop- 
erty was  not  taken  on  execution  or  any  order  or  judgment 
against  said  plaintiff,  or  for  payment  of  any  tax,  fine  or  amerce- 
ment assessed  against  said  plaintiff,  or  by  virtue  of  any  order 
or  delivery  issued  in  replevin  or  any  other  mesne  or  final  process 
issued  against  said  plaintiff. 


Subscribed  and  sworn  to  before  me  this day  of 

19- 


j\ty  commission  expires .  Notary  Public. 

Sec.  1001.     Form  for  replevin  bond. 

In Court, County,  State  of  Oklahoma. 


-,  Plaintiff, 
-,  Defendant. 


vs.  No. 


REPLEVIN   BOND. 

Whereas,  the  above  named  plaintiff  has  commenced  an  action 

against ,  defendant,  above  named,  for  the  recovery  of  the 

possession  of  certain  personal  property  belonging  to  said  plain- 
tiff, described  in  the  petition  filed  herein,  and  has  filed  in  said 


§  1002  merwine's  trial  op  title  to  land.  708 

court  an  affidavit  as  required  by  law,  to  procure  the  immediate 
delivery  of  said  property. 

Now,  we,  the  undersigned,  undertake  to  said  defendant,  in  the 
penal  sum  of  $ ,  for  the  payment  of  which  we  bind  our- 
selves, our  heirs,  administrators  and  assigns,  jointly  and  sever- 
ally: Conditioned,  that  said  plaintiff  shall  duly  prosecute  the 
above  action  and  pay  all  costs  and  damages  that  may  be  awarded 
against  him,  and  if  a  return  of  the  property  therein  delivered  to 
him  be  adjudged,  that  he  will  deliver  the  same  to  said  defendant. 


State  of  Oklahoma, County,  ss. : 

The  undersigned,  sureties  on  the  foregoing  bond,  being  duly 
sworn,  on  oath,  each  for  himself,  says :  I  am  a  resident  house- 
holder and  freeholder  within  the  State  of  Oklahoma,  and  have 
property  in  said  State  worth  over  and  above  all  my  just  debts, 
including  all  property  exempt  from  execution,  the  sum  set  out 
and  stated  below,  that  is  to  say. 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


I  hereby  approve  the  above  bond  this  day  of 

19—.  


Sec.  1002.    Form  of  writ  of  replevin. 

Tlie  State  of  Oklahoma  to  the  Sheriff  of County,  Greet- 
ing: 

"Whereas,  has  commenced  in  the  court.  State 

of   Oklahoma,   within   and   for  tlie   county   of  ,   against 

,  a  civil  action  for  the  recovery  of  the  following  specific 

personal  property:   (Here  describe  article  of  personal  property 

and  give  value  of  each),  of  the  total  value  of  $ ,  and  has 

filed  his  affidavit  and  undertaking  as  required  by  law,  in  the 


709  LANDLORD    AND   TENANT.  §  1003 

office  of  the  court,  in  order  to  obtain  an  order  for  the 

immediate  delivery  of  said  goods  and  chattels. 

This,  Therefore,  is  to  command  you,  as  such  sheriff,  to  take 
said  goods  and  chattels  above  described,  and  deliver  the  same  to 

said  ,  plaintiff,  and  of  this  order  and  your  proceedings 

hereon,  make  due  return  on  or  before  the day  of , 

19—. 

Witness  my  hand  and  the  seal  of  said  court  affixed  at  my 
office  in this day  of ,  19 — . 


Sec.  1003.     Form  for  affidavit  in  attachment  for  rent  on  farm 
lands." 
In Court, County,  State  of  Oklahoma. 

,  PlahJiff, 

vs.  No. . 

,  Defendant. 


State  of  Oklahoma,  County,  ss. : 

,  being  duly  sworn,  on  oath  says  that  ,  plaintiff 

in  the  above  entitled  cause ;  that  the  defendant  above  named, 

tenant  of  said  plaintiff,  and ,  are  justly  and  truly 

indebted  to  said  plaintiff  in  the  sum  of  $ as  rent,  for  the 

use  and  occupation  of  the  follovring  described  farming  lands 
situated  in  said  county,  to-wit :  (Here  insert  description  of  the 
lands  rented),  and  said  plaintiff  claims  a  lien  on  the  crops  grown 
on  said  lands  as  security  for  the  payment  of  said  rents. 

This  affiant  says  that  said  sum  is  wholly  due  and  unpaid,  after 

the  allowance  of  all  just  credits  and  offsets  thereon ;  that  

that  said  crops  on  which  plaintiff  claims  a 


*  The    following    are    grounds    for  ing   his    property    and    crops   grown 

attachment   which   may   be   inserted  thereon,  or  a  part  thereof,  from  said 

in  the  affidavit  to  suit  the  intended  leased   premises."      (c)    "That   said 

action:      (a)     "That    said   defendant  defendant    has,    within    thirtj^    days 

intends  to  remove  his   property,   or  last    passed,    removed    his    property 

crops    grown    thereon,     or    a     j^art  and  crops  grown  thereon,  or  a  part 

thereof,  from  said  leased  premises."  thereof,  from  said  leased  premises." 
(b)    "That  the  defendant  is  remov- 


§  1004  merwine's  trial  of  title  to  land.  710 

lien  consist  of  (Here  give  accurate  description  of  property),  and 
are  now  situated  at . 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


Clerk. 


Sec.  1004.    Form  for  order  of  attachment  for  rent  on  farm 
land. 

In Court, County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

,  Defendant. 


The  State  of  Oklahoma  to  the  Sheriff  of County,  Greet- 
ing: 

You  are  hereby  commanded  to  attach  and  safely  keep  the  crops 
grown  on  the  following  described  premises,  to-mt:  (Plere  de- 
scribe premises), ,  or  so  much  thereof 

as  will  satisfy  the  claim  of  the  plaintiff  for  $ ,  and  the 

sum  of  $ ,  the  probable  cost  of  this  action,  and  of  this 

writ  make  due  return  on  or  before  the  day  of  , 

19—. 

Witness  my  hand  and  seal  of  said  court  this  day  of 

.  19—.  , 


Clerk. 


SHERIFF'S    RETURN. 


Received  this  writ  on  tlie day  of ,  19 — ,  at 

o'clock,  —  m.,  and  executed  the  same  on  the  day  of 

,  19 — ,  at o'clock,  —  m.,  by  -^ — . 

Dated  this day  of ,  19 — . 

> 
Sheriff County. 


711  LANDLORD   AND    TENANT.  §§  1005-1007 

Sec.  1005.     Form  for  notice  to  tenant  to  quit  premises. 
To ; 


You  will  take  notice  that  I  hereby  require  you  to  quit,  sur- 
render and  deliver  up  to  me  the  possession  of  the  following  de- 
scribed real  estate,  in County,  State  of  Oklahoma,  to-wit : 

(Here  describe  premises.)  Said  premises  are  held  by  you  as 
tenant,  and  you  are  required  to  remove  therefrom  on  or  before 

the day  of ,  19 — ,  next,  pursuant  to  the  provisions 

of  the  statute  relating  to  the  rights  and  duties  of  landlord  and 
tenant.  . 

Sec.  1006.     Form  for  notice  to  quit  after  rent  due. 

To ; 

This  is  to  inform  you  that  you  are  .justly  indebted  to  me  in 

the  sum  of  $ ,  for  rent  of  the  following  described  real 

estate,  in County,  State  of  Oklahoma,  to-wit:  (Here  de- 
scribe premises),  from  the  day  of  ,  19 — ,  which 

you  are  required  to  pay  on  or  before  the  expiration  of  five  days 
from  the  day  of  service  of  this  notice,  or  you  will  be  required  to 
surrender  up  possession  of  the  same  to  me;  in  default  of  which 
I  shall  proceed  under  the  statute  to  recover  possession  thereof. 

Dated  this day  of ,  19 — . 


Sec.  1007.     Form  for  notice  to  vacate  tenancy  on  farm. 

To ; 


You  will  take  notice  that  I  desire  to  terminate  the  tenancy 

now  held  by  you  on  the  farm  owned  by  me  in  County, 

Oklahoma,  to-wit:  (Here  describe  premises),  on  the  first  day  of 
January,  19 — ,  next,  and  I  require  you  to  quit  and  deliver  up 
to  me  said  premises  on  or  before  that  date. 

Dated  this day  of ,  19 — . 


§  1008  merwine's  trial  of  title  to  land.  712 

Sec.  1008.     Form  for  affidavit  of  service  of  notice  to  quit. 

State  of  Oklahoma,  County,  ss. : 

I  do  solemnly  swear  that  I  served  a  correct  copy  of  the  fore- 
going notice  on   the  within  named  ,   by  delivering  the 

same  to  him  in  person  on  the day  of ,  19 — ,    Fur- 
ther afJBant  saith  not. 


Subscribed  and  sworn  to  before  me  this day  of 

19—.*  


*  To  the  foregoing  affidavit  should  be  attached  a  true  copy  of  the  notice 
served  upon  tenant. 


CHAPTER   XVII. 

THE  LAW  AND  PROCEDURE  BY  WHICH  REAL  ESTATE 

IS  SOLD  BY  FORECLOSURE  OF 

MECHANIC'S  LIEN. 


SECTION 

1009.  The  origin  and  nature  of  the 

law. 

1010.  The   right   to   assert   the   lien 

may  be  waived,  how. 

1011.  Laborer's    and    materialman's 

lien  on  real  estate — ^Home- 
stead— The  statute. 

1012.  The  lien  attaches  to  leasehold 

interests,   when. 

1013.  A  contract  with  husband  for 

material  may  bind  the  real 
estate  of  wife,  when. 

1014.  The  time  when  lien  attaches. 

1015.  The  title  necessary  to  support 

a  lien. 

1016.  Tlie  lien  statement^ — How  made 

and  where  filed. 

1017.  Subcontractor's      lien      state- 

ment— Time  when  same  is 
filed — Notice   to    the   owner. 

1018.  Materialman  and  laborer  fur- 

nisliing  material  and  labor 
to  fraudulent  grantee  pro- 
tected,   when. 

1019.  A   mechanic's    lien    is    assign- 

able. 

1020.  Procedure — iMay    be    enforced 

by  civil  action — Amendment. 

1021.  Procedure — All  lien  claimants 

to  be  made  parties. 

1022.  The     action     to     foreclose     a 

mechanic's  lien  and  the  pro- 
cedure incidental  to  the 
action. 

1023.  Actions  to  enforce  liens   con- 

solidated, when. 
713 


SECTION 

1024.  Judgment     in     the     action — 

Sales  without  prejudice  to 
the   rights   of  others. 

1025.  Laborer  may  include  attorney 

fee   in  his  claim  for  lien. 

1026.  Owner  may  file  petition  mak- 

ing the  lien  claimants  parties 
and  ask  for  an  adjudication. 

1027.  Proceeds  of  sale  to  pro  rate, 

when. 

1028.  Bond     of     contractor — Action 

on  bond  by  any  party  in- 
terested. 

1029.  Bond  of  contractor  for  public 

building. 

1030.  Where  such  bond  to  be  filed. 

1031.  Lien    for    one    who    has    per- 

formed labor  for  a  railway 
company. 

1032.  Limitation  for  actions  to  fore- 

close the  lien  provided  for 
in  preceding  paragraph. 

1033.  Judgment     and    collection    of 

lien. 

1034.  Tlie  notice  to  be  given. 

1035.  Manner  of  obtaining  lien  upon 

leasehold  for  machinery,  ma- 
terial and  labor  furnished 
for  developing  oil  and  gas 
wells. 

1036.  Subcontractor  may  obtain  lien 

in  same  manner  as  con- 
tractor. 

1037.  The  manner  of  enforcing  such 

lien. 


§  1009  merwine's  trial  op  title  to  land.  714 

SECTION  SECTION 

1038.  Procedure    in    the   foreclosure       1044.  Form  for  proof  of  publication. 

of  mechanics'  lien — The  form  1045.  Form  for  the  decree  of  court 
for  petition  foreclosing  sub-  foreclosing  the  lien, 

contractor's  lien.  1046.  Form    for    execution    in    such 

1039.  Procedure    by    which    a    me-  case. 

chanic's  lien   is  foreclosed —  1047.  Form  for  appraisement  of  real 

The  petition  for  foreclosure  estate. 

of  lien  setting  forth  a  single  1048.  Form       for      publication      of 

cause  of  action  upon  a  ma-  sheriff's  sale  of  real  estate, 

terialman's  lien.  1049.  Form  for  proof  of  publication. 

1040.  Form    for    answer    admitting  1050.  Form    for    sheriff's   return   of 

the   allegations   of  the   peti-  his    proceedings    under  the 

tion   and    consenting   to   the  writ,     the     same    being  at- 

prayer   thereof.  tached    to    the   back    of  the 

1041.  Form    for    notice    for    service  execution  above. 

by   publication    for   nonresi-       1051.  Form   for   order  of   court   ap- 
dent  defendant.  proving    sherii}''s    sale. 

1042.  Form     for    the     affidavit    for       1052.   Form     for    sheriff's    deed     to 

service  by  publication.  purchaser. 

1043.  Form   for  service  by   publica- 

tion. 

Sec.  1009.     The  origin  and  nature  of  the  law. 

The  law  by  which  the  mechanic  or  laborer  can  claim  a 
lien  on  real  estate  for  the  value  of  labor  or  material  for  the  im- 
provement thereof,  did  not  exist  at  common  law.  It  is  purely  a 
creature  of  the  statute.^  It  is  founded  in  justice  and  arises 
from  the  principle  that  the  owner  of  real  estate,  having  se- 
cured the  labor  and  material  improving  his  property,  should 
allow  a  lien  to  attach  thereto  for  the  payment  thereof.  Its 
object  was,  and  is,  to  obviate  the  injustice  and  wrong 
practiced  on  laborers  and  materialmen  by  contractors  in 
defrauding  them  of  their  just  demands  after  they  have  per- 
formed labor  or  furnished  material.  It  interferes  with  the 
honest  intention  of  no  man,  and  merely  secures  rights  that 
could  have  been  made  available  by  activity  and  vigilance  in 
the  prosecution  of  remedies  that  existed  before  the  law.^' 
The  lien  is  not  obtained  by  legal  proceedings,  but  is  a  lien 
voluntarily  conferred  by  the  owner  when  he  hires  a  mechanic 
or  orders  material.-^ 

iMcCune  v.  Snyder,  8  0.  D.  316.  3  In  re  Beck,   11   0.  F.  D.  449. 

2  Railway  v.   Cronin,   1   W.  L.  B. 
(Ohio),  315. 


715  REAL   ESTATE   SOLD   BY    MECHANIC'S   LIEN.        §§  1010,  1011 

Sec.  1010.  The  right  to  assert  the  lien  may  be  waived,  how. 
The  right  to  place  a  mechanic's  lien  on  real  estate  of  an- 
other for  labor  and  material  furnished  for  the  improvement 
thereof,  like  any  other  simple  right,  may  be  waived.  It  has 
been  held  that  it  may  be  waived  by  acts  and  agreement, 
although  he  has  made  no  express  promise,  he  will  waive  the 
right,*  by  agreement,  express  or  complied,  that  the  lien  will 
not  be  asserted ;  ^  and  by  accepting  a  note  in  payment  of  a 
mechanic's  claim  for  material  furnished  and  work  done.**  But 
by  statute  the  taking  of  a  note  does  not  waive  the  lien.* 

Sec.  1011.  Laborer  and  materialman's  lien  on  real  estate — 
Homestead — The  statute. 
Any  person  who  shall,  under  oral  or  written  contract  with 
the  owner  of  any  tract  or  piece  of  land,  perform  labor  or 
furnish  material  for  the  erection,  alteration  or  repair  of  any 
building,  improvement,  or  structure  thereon ;  or  who  shall 
furnish  material  or  perform  labor  in  putting  up  any  fix- 
tures, machinery  in  or  attachment  to,  any  such  building, 
structure  or  improvements;  or  who  shall  plant  any  trees, 
vines,  plants  or  hedge  in  or  upon  such  land;  or  who  shall 
build,  alter,  repair  or  furnish  labor  or  material  for  building, 
altering  or  repairing  any  fence  or  footwalk  in  or  upon  said 
land,  or  any  sidewalk  in  any  street  abutting  such  land,  shall 
have  a  lien  upon  the  whole  of  said  tract  or  piece  of  land,  the 
buildings  and  appurtenances,  but  if  a  homestead  the  lien 
shall  be  good  on  not  to  exceed  five  acres  in  a  square  form 
on  which  the  building  material,  fixtures  or  machinery  are 
located,  in  the  manner  herein  provided,  for  the  amount  due 
him  for  such  labor,  materials,  fixtures  or  machinery.  If  the 
title  to  the  land  is  not  in  the  person  with  whom  any  such 
contract  was  made,  but  is  leased  and  unimproved,  the  lien 
shall  be  allowed  on  the  buildings  and  improvements  on  such 
land  separately   from   the   real   estate.      Such   liens   shall   be 

4  West  V.   Klotz,   37   O.   S.   420.  0.    S.   332;    Bernsdorf  v.   Hardway, 

5  Iron  V.  Murray,  38  0.  S.  323.  7  €.  C.  378. 

6  Brooks  V.  Finney,   39   0.  S.   57;  *  Snyder,  6,152;   Wilson,  4,818. 
but    see    Standard    v.    Sowden,    55 


§  1011  merwine's  trlvl  op  title  to  land.  716 

preferred  to  all  other  liens  or  incumbrances  which  may 
attach  to  or  upon  such  land,  buildings  or  improvements  or 
either  of  them,  subsequent  to  the  commencement  of  such 
building,  the  furnishing  or  putting  up  of  such  fixtures  or 
machinery,  the  planting  of  such  trees,  vines,  plants  or  hedges, 
the  building  of  such  fence,  footwalk  or  sidewalk,  or  the  making 
of  any  such  repairs  or  improvements.^ 

One  who  performs  labor  in  drilling  an  oil  or  gas  well  on 
lands  in  which  the  owner  of  the  well  has  no  interest,  beyond 
that  acquired  by  the  ordinary  oil  and  gas  lease,  authorizing 
an  entry  upon  the  lands  to  explore  for  oil  and  gas,  cannot 
obtain  a  mechanic's  lien  for  such  labor  which  will  attach 
to  the  lease,  or  to  personal  property  belonging  to  the  lessee 
and  left  on  the  land.^  But  the  statute  now  authorizes  such 
lien.  And  one,  who,  under  a  contract  with  the  owner  of 
land,  furnishes  a  windmill  and  other  material,  and  erects  the 
same  thereon,  is  entitled  to  a  lien  on  said  land  for  said  im- 
provement, by  complying  with  the  provisions  of  the  me- 
chanic's lien  law.^ 

7  Snyder,     6,151;      act     approved  Choctaw   nation,    for   material    used 

March     13,     1905;      Kansas,     5,117  in   its   construction,   though  the   fee 

(1901),    identical.      The    homestead  is   in  the   land   and  cannot  be  sold, 

mentioned    in   the   statute    must   be  Arnold  v.   Campbell,   G4   S.   W.   532, 

actually  occupied.     An   intention  to  3   Ind.   Ter.  550.     Under  the  provi- 

do  so  in  the  future  will  not  be  suffi-  sions    of    Sec.    630,    Code    of    Civil 

cient.      Ball    v.    Houston,    11    Okla.  Procedure,  in  relation  to  mechanics' 

233,   66   Pac.   359.     Tiie  husband  of  liens,    where    tliere    are    prior    liens 

a  wife  who  owns  real  estate,  buying  on    the    land,    the    mechanics    and 

the  material,  will  give  the  right  to  materialmen  are  entitled  to  priority 

charge  the  real  estate  with  the  lien.  on  a  new  structure  erected  entirely 

Limerick  v.  Ketcham,  17  Okla.  532,  by    them   and    from    their    material 

i87    Pac.   605.      It    was    held    under  independent     of     the     land     itself. 

Sec.      4,402       (Mansfield's      Digest,  McCrie  v.  Hecker,  51  Pac.  Rep.  966, 

Arkansas),  providing  that  material-  7   Kan.  App.  39. 
men  shall  have  a  lien  on  the  build-  «  Eastern  v.  McEvoy,  75  Kan.  515, 

ing    and    lands    of    the    owner    on  89    Pac.    1,048;    Philips    v.    Spring- 

which    it    is    situated,    that    a    lien  field,  76  Kan.  783,  92  Pac.  1,119. 
will   lie  and  may  be  enforced   on   a 

building,    and    the    interest    of    the  9  Phelps  v.  Baker,  30   Pac.  477. 

owner   thereof  in  the   lands,   in  the 


717  REAL   ESTATE   SOLD    BY    MECHANIC'S   LIEN.  §§  1012-1014 

The  erection  or  construction  of  a  lightning  rod  or  rods  on 
any  building  will  not  be  considered  such  an  improvement, 
fixture  or  attachment,  as  to  come  under  the  provisions  of  the 
act  providing  for  the  creation  of  mechanics'  liens.^" 

Sec.  1012.     The  lien  attaches  to  leasehold  interests,  when. 

The  term  ''owner,"  as  used  in  the  statute,  has  been  held 
to  extend  to  the  interest  anyone  may  have  in  a  leasehold 
interest  subject  to  the  paramount  right  of  the  holder  of 
the  fee.^^  But  this  subject  as  to  oil  and  gas  well  improve- 
ments, is  now  regulated  by  statute/^ 

Sec.  1013.     A  contract  with  husband  for  material  may  bind 
the  real  estate  of  wife,  when. 
A   husband,    buying   material    and   using   the   same    for    a 
structure  on  lands,  the  title  to  which  is  in  the  wife,  will  give 
a  lien  on  the  lands  for  the  payment  of  such  material/^ 

Sec.  1014.    The  time  when  lien  attaches. 

In  controversies  between  one  asserting  a  lien  for  material 
or  labor  furnished,  and  other  lienholders  as  to  priority  of 
date  when  the  lien  attaches  to  real  estate,  is  the  time  the 
work  was  begun  on  the  foundation,  notwithstanding  the 
foundation  was  made  by  the  owner,  or  under  his  direction, 
and  not  under  a  contract." 

10  Snyder,  6,162;  Wilson,  4,828.  12  Snyder,     6,670;     act     approved 

11  Block  V.  Pearson,  19  Okla.  422,       March    15,    1905. 

91    Pac.    714;    Jarrell   v.   Block,    19  i3  Limerick  v.  Ketcham,   14  Okla. 

Okla.    467,    92    Pac.    1G7;    Seitz   v.  538,  87  Pac.  605 ;  Bethel  v.  Chicago, 

U.    P.,    etc.,    16   Kan.    133;    Hatha-  39  Kan.  230,   17  Pac.  813.     But  to 

way  V.  Davis,  32  Kan.  693,  5   Pac.  obtain  a  lien  on  the  homestead  both 

29;    Chicago    v.    Osborne,    40    Kan.  mnst  contract   for   the   material   or 

168,   19   Pac.   656;    Meyer  v.  Brown,  labor.     Rowley  v.  Varnum,  15  Okla. 

46  Kan.  543,  26  Pac.  1,019;  Chicago  612,  84  Pac.  487. 

V.  Fretz,  51  Kan.  134,  32  Pac.  908;  i4  National  v.  Hutchinson,  6  Kan. 

Mulvane   v.    Chicago,   56    Kan.   615,  App.  673,  50  Pac.  100;  Mortgage  v. 

44  Pac.  613;    Cr.utcher  v.  Block,  19  Weyerhaeuser,  29  Pac.  153;   Ins.  v. 

Okla.  246,  91  Pac.  895.  Ronde,   26   N.  J.   Eq.   389;    Penrock 


§§  1015, 1016       merwine's  trial  of  title  to  land,  718 

Sec.  1015.     The  title  necessary  to  support  a  lien. 

Complete  title  is  not  always  necessary  when  the  contract 
for  material  was  made.  An  equitable  title  will  be  sufficient 
to  support  the  lien/^ 

Sec.  1016.     The  lien  statement — How  made  and  where  filed. 

Any  person  claiming  a  lien  as  set  forth  in  this  chapter, 
foregoing  paragraph,  is  required  to  file  in  the  office  of  the 
clerk  of  the  district  court  in  the  county  in  which  the  land 
is  situated,  a  statement  setting  forth  the  amount  claimed  and 
the  items  thereof,  as  nearly  as  practicable,  the  name  of  the 
owner,  the  name  of  the  contractor,  the  name  of  the  claimant 
and  a  description  of  the  property  subject  to  the  lien,  verified 
by  affidavit :  Provided,  that  if  any  promissory  note  bearing  a 
lawful  rate  of  interest  be  taken  for  any  such  labor  or  ma- 
terial, it  wall  not  be  necessary  to  file  an  itemized  statement 
of  the  labor  or  material  furnished,  but,  in  lieu  thereof,  it 
will  be  sufficient  to  file  a  copy  of  such  note,  with  a  sworn 
statement  that  said  note,  or  any  part  thereof,  was  given  for 
such  labor  or  material  used  in  the  construction  of  such  build- 
ing or  improvement;  and  if  the  whole  of  said  note  be  given 
for  such  labor  or  material  the  lien  shall  be  for  the  whole  of  the 
principal  and  interest  of  such  note ;  but  if  a  part  of  said  note 
only  be  given  for  such  labor  or  material  then  the  lien  will 
be  for  a  corresponding  amount  only,  with  interest  at  the  rate 
specified  in  said  note.  Said  statement  must  be  filed  within 
four  months  after  the  date  on  which  material  was  last  fur- 
nished or  labor  last  performed  under  the  contract  as  afore- 
said ;  and  if  the  claim  be  for  the  planting  of  trees,  vines,  plants 

V.  Hoover,  5  Ralle,  291;  Brook  v.  contractor  treat  the  building  as 
Lester,  36  Md.  67;  :\Iitchell  v.  Pen-  completed,  it  will  be  deemed  corn- 
field, 8  Kan.  186.  The  abandonment  pleted  for  the  purpose  of  attaching 
of  work  on  a  building  by  the  con-  a  lien  thereon.  Rice  v.  Brown,  2 
sent  or  fault  of  the  owner  will  be  Kan.  App.  1,  42  Pac.  392. 
deemed  a  completion  of  the  building  is  Jarvis  v.  Sulton,  46  Kan.  166, 
for  the  purpose  of  filing  a  lien.  26  Pac.  406;  Getto  v.  Friend,  46 
Shaw  V.  Stewart,  43  Kan.  572,  23  Kan.  67,  26  Pac.  473. 
Pac.    616.      Where    the    owner   and 


719  REAL   ESTATE    SOLD   BY    MECHANIC 's   LIEN.  §  1017 

or  hedge,  such  statement  must  be  filed  within  four  months  from 
such  planting.  Immediately  upon  the  receipt  of  such  state- 
ment the  clerk  of  the  district  court  is  required  to  enter  a 
record  of  the  same  in  a  book  kept  for  that  purpose  to  be 
called  the  Mechanics'  Lien  Docket,  which  docket  must  be 
ruled  off  in  separate  columns  with  headings  as  follows: 
''When  filed,"  "Name  of  0^^^ler,"  "Name  of  Claimant," 
"Amount  claimed,"  "Description  of  property,"  and  "Re- 
marks," and  the  clerk  must  make  the  proper  entry  in  each 
column.^* 

Sec.  1017.     Subcontractor's  lien — Statement — Time  when  same 
is  filed — Notice  to  the  owner. 

Any  person  who  furnishes  any  such  material  or  performs 
such  labor  under  a  subcontract  with  the  contractor,  or  as  an 
artisan  or  day  laborer  in  the  employ  of  such  contractor,  may 
obtain  a  lien  upon  such  lands  or  improvements,  or  both,  from 
the  same  time,  and  in  the  same  manner,  and  to  the  same 
extent  as  the  original  contractor,  for  the  amount  due  him 
for  such  material  and  labor ;  and  any  artizan  or  day  laborer 
in  the  employ  of  and  any  such  person,  who  furnishes  material 
to  such  subcontractor,  may  obtain  a  lien  upon  said  lands  or 
improvements  or  both,  for  the  same  time,  and  in  the  same 
manner  and  to  the  same  extent  as  the  subcontractor  for  the 
amount  due  him  for  such  material  and  labor,  by  filing  with 
the  clerk  of  the  district  court  of  the  county  in  which  the  land 
is  situated,  within  sixty  days  after  the  date  upon  which  ma- 
le Snyder.  6,152:  Wilson,  4.818;  54  Kan.  641,  39  Pac.  177;  Conroy 
Kansas,  5,118  (1901),  identical.  As  v.  Perry,  26  Kan.  472.  As  to  what 
to  when  a  materialman  becomes  a  is  an  insufficient  statement,  see 
subcontractor,  see  Ryndak  v.  Sea-  Xewman  v.  Brown,  27  Kan.  117; 
well,  13  Okla.  737,  76  Pac.  170.  As  Hentig  v.  Sperry,  38  Kan.  459,  17 
to  what  statements  are  sufficient  to  Pac.  42.  As  to  what  is  a  reason- 
establish  lien,  see  Blanshard  v.  able  time  in  which  subcontractor 
Schwartz,  7  Okla.  23,  54  Pac.  304;  may  file  statement,  see  Deatherage 
North  V.  Hegner,  42  Pac.  388;  v.  Henderson,  43  Kan.  684,  23  Pac. 
Bethel  v.  Bethel,  39  Kan.  230,  17  1.052;  Pierce  v.  Osborne,  40  Kan. 
Pac.  813;  School  v.  Howell,  44  Kan.  168,  19  Pac.  656, 
285,  24  Pac.  365;   Martin  v.  Burns, 


§  1017  MERWINE'S   TRIiVL    OF   TITLE   TO   LAND.  720 

terial  was  last  furnished  or  labor  last  performed  under  said 
subcontract,  a  statement  verified  by  affidavit,  setting  forth 
the  amount  due  from  the  contractor  to  the  claimant  and 
the  items  thereof  as  nearly  as  practicable,  the  name  of  the 
owner,  the  name  of  the  contractor,  the  name  of  the  claimant 
and  a  description  of  the  property  upon  which  the  lien  is 
claimed;  and  by  serving  notice  in  writing  of  the  filing  of 
such  lien  upon  the  owner  of  the  lands  or  improvements,  or 
both:  Provided,  that  if  with  due  diligence  the  owner  cannot 
be  found  in  the  county  where  the  land  is  situated,  the  claim- 
ant after  filing  an  affidavit  setting  forth  such  facts,  may 
serve  a  copy  of  said  statement  upon  the  occupant  of  the 
lands,  or  the  occupant  of  the  improvements,  as  the  case  may 
be.  Or,  if  the  same  be  unoccupied,  may  post  said  copy  in  a 
conspicuous  place  on  said  land  or  any  building  thereon.  Im- 
mediately upon  the  filing  of  said  statement  the  clerk  of  the 
district  court  is  required  to  enter  a  record  of  the  same  in  the 
docket  provided  for  in  Section  6152,  Snyder,  in  the  manner 
therein  specified;  that  the  owner  of  any  land  affected  by 
such  lien  will  not  thereby  become  liable  to  any  claimant  for 
any  greater  amount  than  he  contracted  to  pay  to  the  original 
contractor.  The  risk  of  all  payments  made  to  the  original 
contractor  will  be  upon  such  owner  until  the  expiration  of 
the  sixty  days  herein  specified,  and  no  owner  will  be  liable 
for  any  action  by  such  contractor  until  the  expiration  of  the 
said  sixty  days,  and  such  owner  may  pay  such  subcontractor 
the  amount  due  him  from  such  contractor,  for  such  labor  and 
material,  and  the  amount  so  paid  be  held  and  deemed  a  pay- 
ment of  said  amount  to  the  original  contractor.^^ 


17  Snyder,     6,153;      act     approved  277.     For  insufficient  statement  for 

March     15,     1905;     Kansas,     5,119  lien,    see   Long   v.   Adams,    71    Kan. 

(1901),  identical.     It  is  not  neces-  309,     80     Pac.     593;      Western     v. 

sary  to  allege  and  prove  knowledge  Hynan,    71    Kan.    43,    80    Pac.    16; 

of  the  owner.     Ferguson  v.  Brown,  Nixon   v.    Cydon,    56    Kan.    298,    43 

14    Okla.    148,    77    Pac.    184.      The  Pac.  236.     As  to  the  date  when  the 

time  runs  from  the  date  of  the  fur-  time    begins    to    run    within    which 

nishing  of  the  last  item.     Board  v.  lien  may  be  filed,  see  P.  T.  Walton 

Gelino,  9   Kan.   App.   555,   58   Pac.  etc.,  29   Okla.   237,    1,116  Pac.   798. 


721  REAL   ESTATE   SOLD   BY    MECHANIC'S  LIEN,         §§  1018-1020 

Sec.  1018.  Materialman  and  laborer  furnishing  material  and 
labor  to  fraudulent  grantee  protected,  when. 
An  owner  of  real  estate  who  was  induced  by  fraud  to  con- 
vey the  title  to  another,  a  contract  contemplating  the  con- 
struction of  buildings  thereon,  cannot,  in  an  action  brought 
by  him  to  set  aside  the  conveyance  and  discharge  the  prop- 
erty from  all  liens,  defeat  the  claims  of  persons  who,  in  good 
faith,  and  relying  on  the  apparent  title  of  the  fraudulent 
purchaser,  have  furnished  materials  and  performed  labor  in 
the  construction  of  buildings  contemplated,  and  have  complied 
with  the  statutory  requirements  in  establishing  their  liens/^ 

Sec.  1019.     A  mechanic's  lien  is  assignable. 

All  claims  for  liens  and  rights  of  action  to  recover  therefor 
under  the  statute  creating  mechanics'  liens,  are  assignable  so  as 
to  vest  in  the  assignee  all  the  rights  and  remedies  herein 
given,  subject  to  all  defenses  thereto  that  might  be  made  if 
such  assignment  had  not  been  made.  Where  a  statement 
has  been  filed  and  recorded  as  herein  provided,  such  assignment 
may  be  made  by  an  entry  on  the  same  page  of  the  Mechanics' 
Lien  Docket  containing  the  record  of  the  lien,  signed  by  the 
claimant  or  his  lawful  representative  and  attested  by  the 
clerk,  or  such  assignment  may  be  made  by  a  separate  instru- 
ment in  writing.^^ 

Sec.  1020.  Procedure— May  be  enforced  by  civil  action- 
Amendment. 
Any  lien  provided  for  by  this  chapter  may  be  enforced  by 
civil  action  in  the  district  court  of  the  county  in  which  the 
land  is  situated,  but  such  action  must  be  brought  within  one 
year  from  the  time  of  the  filing  of  said  lien  with  the  clerk 
of  said  court:  Provided,  that  where  a  promissory  note  is 
given,  such  action  may  be  brought  at  any  time  within  one 
year  from  the  maturity  of  said  note.     The  practice,  pleading 


18  West  V.   Badger,   56   Kan.   298,  is  Snyder,    6,154;    Wilson,    4,820; 

43  Pac.  239.  Kansas,  5,120    (1901),  identical. 


§  1021 


MERWINE  S   TRIAL,    OF   TITLE   TO  LAND. 


722 


and  proceedings  in  said  action  must  conform  to  the  rules 
prescribed  by  the  code  of  civil  procedure  as  far  as  the  same 
may  be  applicable ;  and  in  case  of  an  action  brought,  any 
lien  statement  may  be  amended  by  leave  of  court  in  further- 
ance of  justice  as  pleadings  may  be  in  any  matter,  except  as  to 
the  amount  claimed."*^ 

Sec.  1021.  Procedure — All  lien  claimants  to  be  made  parties. 
In  such  actions  all  persons  whose  liens  are  filed  as  pro- 
vided in  this  chapter,  and  other  incumbrancers,  must  be 
made  parties,  and  the  issues  must  be  made  and  a  trial  had 
as  in  other  cases.  Where  such  action  is  brought  by  a  sub- 
contractor, or  other  person  not  the  original  contractor,  such 
original   contractor   must   be   made    a   party   defendant,    and 


20  Snyder,  6,155;  Wilson,  4,821; 
Albert!  v.  Mooer,  20  Okla.  78,  93 
Pac.  543;  El  Reno  v.  Jennison,  50 
Pac.  144;  Blanshard  v.  Schwartz, 
7  Okla.  23,  54  Pac.  304;  Atkinson 
V.  Woodmansee,  68  Kan.  71,  74  Pac. 
640.  In  an  action  to  partition  real 
estate  where  the  parties  claiming 
mechanics'  liens  are  made  parties 
defendant,  and  file  an  answer  and 
cross-petition  showing  the  com- 
mencement of  an  action  which  had 
been  dismissed  without  prejudice, 
that  within  a  year  from  such  dis- 
missal the  present  action  had  been 
commenced  and  cross  petition  filed, 
held,  that  by  virtue  of  the  provi- 
sions of  Sec.  23  of  the  Civil  Code, 
the  action  of  defendants  claiming  a 
lien  was  not  barred  by  the  one-year 
limitation  prescribed  by  the  me- 
chanics' lien  law  [paragraph  4747 
(1889)],  although  n,ore  than  one 
year  had  elapsed  since  the  com- 
pletion of  the  building.  Hobbs  v. 
Spencer,  49  Kan.  569,  31  Pac.  702; 
Seaton   v.   Hixon,   35   Kan.    603,    12 


Pac.  22.  When  an  action  is  regu- 
larly brought  against  the  owner  of 
the  premises  within  one  year  from 
tlie  time  of  filing  a  materialman's 
lien  to  foreclose  such  lien,  the  con- 
tractor may  be  made  a  party 
thereto,  upon  the  application  of 
either  party,  after  the  expiration  of 
one  year.  An  action  so  commenced 
is  not  barred  by  the  statute  of 
limitation,  because  the  contractor 
is  not  made  a  party  thereto  before 
the  expiration  of  a  year  from  the 
time  of  filing  the  lien  statement. 
Western  v.  Heiman,  05  Kan.  5,  68 
Pac.  1,080.  In  an  action  to  enforce 
a  mechanic's  lien  service  of  sum- 
mons upon  the  owner  within  the 
period  prescribed  by  statute  for  the 
commencement  of  such  action,  does 
not  preserve  the  lien  as  against 
other  incumbrancers  who  are  not 
made  parties  to  such  an  action 
within  the  period  of  limitation. 
Wood  V.  Dill,  3  Kan.  App.  484,  43 
Pac.  822, 


723 


REAL   ESTATE    SOLD    BY    MECHANIC'S   LIEN. 


§1021 


must,  at  his  own  expense,  defend  against  the  claim  of  every 
subcontractor  or  other  persons  claiming  liens  under  the  pro- 
visions of  this  chapter.  If  he  fails  to  make  such  defense,  the 
owner  may  make  the  same  at  the  expense  of  such  contractor; 
and  until  all  such  claims,  costs  and  expenses  are  finally 
adjudicated,  and  defeated  or  satisfied,  the  owner  will  be 
entitled  to  retain  from  the  contractor  the  amount  thereof 
and  such  costs  and  expenses  as  he  may  be  required  to  pay : 
Provided,  that  if  the  sheriff  of  the  county  in  which  said 
action  is  pending  makes  return  that  he  is  unable  to  find  such 
original  contractor,  the  court  may  proceed  to  adjudicate  the 
liens  on  the  land  and  render  judgment,  and  to  enforce  the  same 
with  costs,^^ 


21  Snyder,  6,156;  Kansas,  2,122 
( 1909 ) ,  identical.  Under  paragraph 
4,738  (Mechanics'  Liens),  General 
Statute,  1889,  a  subcontractor  or 
other  person  who  brings  an  action 
against  the  owner  of  a  building  for 
materials  used  in  its  construction 
must  make  the  original  contractor 
a  party,  and  if  the  subcontractor 
or  other  person  fails  to  do  so,  and 
the  contractor  has  notice  or  knowl- 
edge of  the  pendency  of  the  action 
and  fails  to  defend  the  maker 
against  such  demand,  the  owner 
may  defend  at  the  cost  and  expense 
of  the  contractor.  If  the  contractor 
is  not  shown  to  have  notice  or 
knowledge  of  the  pendency  of  the 
action,  the  owner  hos  a  cause  of 
action  against  the  subcontractor  or 
other  person,  for  damages  by  reason 
of  the  wrongful  institution  of  the 
action,  because  of  the  failure  to 
make  the  contractor  a  party.  When 
the  contractor  assigns  all  the  money 
due  on  a  building  contract  to  a 
lumber     man     who     had     furnished 


material,  and  who  had  primarily 
brouglit  suit  without  making  the 
contractor  a  party,  the  owner  can 
plead  such  cause  of  action  as  a 
counterclaim.  Tracy  v.  Kerr,  47 
Kan.  656,  28  Pac.  707.  Where  a 
cross-petition  sets  up  a  mechanic's 
lien,  and  prays  for  foreclosure  of 
the  same  and  a  sale  of  the  premise9 
therein  described,  and  an  answer 
is  filed,  containing,  among  other 
things,  a  general  denial,  and  upon 
the  trial  the  court  permits  the 
answer  to  be  amended  so  as  to 
allege  the  abandonment  of  work  on 
the  building  in  place  of  its  comple- 
tion, the  answer  on  file  will  be 
regarded  as  putting  in  issue  the 
amendment  to  the  cross-petition, 
and,  therefore,  when  the  court  and 
parties  proceed  with  the  trial,  as  if 
the  alleged  abandonment  was  one  of 
the  issues  of  the  case,  the  failure 
of  the  court  to  permit  the  filing  of 
a  new  denial  is  not  erroneous  or 
prejudicial.  Great  v.  Chicago,  47 
Kan.  672,  28  Pac.  714. 


§  1022  merwine's  trial  of  title  to  land.  724 

Sec.  1022.    The  action  to  foreclose  a  mechanic's  lien  and  the 
procedure  incidental  to  the  action. 

Ordinarily  the  action  is  brought  for  a  personal  judgment 
and  for  a  foreclosure  of  the  lien  to  satisfy  the  debt.  In  such 
an  action  service  of  summons  must  be  personal,  for  a  per- 
sonal judgment  cannot  be  acquired  on  constructive  service, 
even  though  the  court  has  jurisdiction  over  the  property.^^ 

The  usual  form  for  such  petition  is  in  one  cause  of  action 
to  declare  on  the  account  for  material  or  labor  furnished, 
or  on  the  note  given  therefor  in  the  ordinary  way,  and  in 
the  second  cause  of  action,  on  the  lien  given  to  secure 
the  same.  The  cause  of  action  setting  forth  the  lien,  may, 
by  apt  and  accurate  language,  adopt  the  allegations  of  the 
cause  of  action  declaring  on  the  account  or  contract,  or 
note.  But  the  reference  to  the  adoption  mvist  be  clear  and 
definite,  and  not  leave  any  doubt  as  to  its  meaning. 

The  petition  should  allege  all  the  statutory  requirements 
necessary  to  establish  the  lien.  Where  service  is  constructive, 
or  in  case  no  personal  judgment  is  sought,  the  petition  need 
contain  only  one  cause  of  action.  In  such  case  the  prayer 
is  that  the  court  should  find  the  amount  due  plaintiff  and 
that  the  lien  may  be  foreclosed  and  the  real  estate  therein 
described,  sold,  to  satisfy  the  amount  so  found  due. 

For  a  full  discussion  of  the  procedure  as  to  parties,  ref- 
erence is  had  to  the  first  chapter  of  this  work.  There 
will  be  found  the  law  and  procedure  connected  with  the 
issuance  and  service  of  summons  in  the  action,  how  the 
defendants  may  voluntarily  enter  their  appearance  to  the 
action,  how  service  of  summons  may  be  had  on  residents  of 
the  county  and  nonresidents  of  the  county  who  are  residents 
of  the  State,  how  service  of  summons  is  made  on  nonresidents 
of  the  State  by  publication  and  by  copy  of  the  petition,  how 
infants  are  served  with  summons  and  defended  by  guardians 
ad  litem  appointed  by  the  court,  and  the  conduct  of  such 
defense;  how  insane  persons  are  defended,  and  how  all  the 

22  Brown    v.    Ins,     Co.,    6    C.    C.   (Ohio),  62. 


725  REAL    ESTATE    SOLD    BY    MECHANIC  's   LIEN,  §  §  1023-1025 

steps  must  be  taken  in  order  to  give  the  court  power  to  liear 
and  determine  the  rights  of  the  parties  to  the  action. 

Sec.  1023.     Actions  to  enforce  liens  consolidated,  when. 

If  several  actions  brought  to  enforce  the  liens  herein  pro- 
vided for  are  pending  at  the  time,  the  court  may  order  them  to 
be  consolidated,  and  in  any  action  brought  to  enforce  a  lien 
under  this  act,  if  the  building  or  other  improvement  is  still 
in  the  course  of  construction,  the  court,  on  application  of 
any  party  engaged  in  furnishing  labor  or  material  for  such 
building  or  improvement,  may  stay  the  trial  thereof  for  a 
reasonable  time  to  permit  the  filing  of  a  lien  statement  by 
said  party  under  the  provisions  of  this  act.-^ 

Sec.  1024.  Judgment  in  the  action — Sales  without  prejudice 
to  the  rights  of  others. 

In  all  cases  where  judgment  may  be  rendered  in  favor  of 
any  person  or  persons  to  enforce  a  lien  under  the  provisions  of 
this  chapter,  the  real  estate  or  other  property  is  required  to  be 
sold  as  in  other  cases  of  sales  of  real  estate,  such  sales  to  be 
without  prejudice  to  the  rights  of  any  prior  incumbrancer, 
owner  or  other  person  not  a  party  to  the  action.-* 

The  service  of  summons  upon  the  owner  of  real  estate  in 
an  action  by  one  mechanic  lienholder  will  not  operate  to  save 
other  lienholders  of  the  same  character  from  this  limitation 
of  the  statute.^^ 

Sec.   1025.     Laborer  may  include  attorney  fee  in  his   claim 
for  lien. 
If    any    action    brought    by    an    artisan    or    day    laborer    to 
enforce  any  lien  under  the  provisions  of  this  chapter,  where 

23  Snyder,    6,157;    Wilson,    4,S23.  mortgage?.   Z7eW,  that  it  was  proper 

Two  mechanics'  liens  were  filed  on  to  consolidate  tliem  for  the  purpose 

an  entire  tract,  and  other  mechanics'  of   trial.      Van  Lear  v.   Kansas,   56 

liens   and    mortirages   were   executed  Ean.  545,  43  Pac.   1,134. 
on  specific  subdivisions  of  the  same  2*  Snyder,    6,158;    Wilson,    4,824; 

tract,  and  several  actions  were  com-  Kansas,  5.124    (1901),  identical, 
menced  in  the  district  court  to  fore-  =5  Wood  v.  Gill,  3  Kan.  App.  484, 

close   the   mechanics'   liens   and   the  43   Pac.   822. 


§§  1026-1028      mebwine's  trial  of  title  to  land.  726 

judgment  be  rendered  for  the  plaintiff,  the  plaintiff  will  be 
entitled  to  recover  a  reasonable  attorney's  fee  to  be  fixed  by 
the  court,  which  must  be  taxed  as  costs  in  the  action.-'^  This 
law  has  been  held  unconstitutional.^^ 

Sec.  1026.     Owner  may  file  petition  making  the  lien  claimants 
parties  and  ask  for  an  adjudication. 

If  any  lien  or  liens  be  filed  under  the  provisions  of  this 
chapter,  and  no  actions  to  foreclose  any  such  liens  are  com- 
menced, the  owner  of  the  land  may  file  his  petition  in  the 
district  court  of  the  county  in  which  such  land  is  situated, 
making  such  lien  claimants  defendants  therein,  and  pray  for 
an  adjudication  of  such  lien  or  liens  so  claimed,  and  if  any 
such  lien  claimant  fail  to  establish  his  lien,  the  court  may 
tax  against  said  claimant  the  whole,  or  such  portion  of  the 
costs  of  such  action  as  may  be  just :  Provided,  that  if  no  action 
to  foreclose  or  adjudicate  any  lien  filed  under  the  provisions 
of  this  act,  be  instituted  within  one  year  from  the  filing  of 
such  lien,  the  clerk  of  the  district  court  is  required  to  enter 
under  the  head  of  "Remarks,"  in  the  Mechanics'  Lien 
Docket,  hereinbefore  named,  that  such  lien  is  cancelled  by 
limitation  of  law.-^ 

Sec.  1027.     Proceeds  of  sale  to  pro  rate,  when. 

If  the  proceeds  of  the  sale  be  insufficient  to  pay  all  the 
claimants,  then  the  court  shall  order  them  to  be  paid  in  pro- 
portion to  the  amount  due  each.^^ 

Sec.  1028.     Bond  of  contractor — Action  on  bond  by  any  party- 
interested. 

The  contractor  or  owner  mentioned  in  the  statute  (Snyder, 
6151;  Act  approved  March   15,   1905),  may  execute   a  bond 

26  Snyder,    6,159;    Wilson,    1,825;  28  Snyder,  6,160;  Wilson,  4,820. 
Kansas,  5,125  (1901>,  identical.  29  Snyder,  6,161;   Wilson,  4,827. 

27  Chicago  V.  Mashore,  21  Okla. 
275,  96  Pac.  630;  Atchison  v.  Wood- 
men, 68  Kan.   71,  74  Pac.  640.  , 


727  REAL   ESTATE   SOLD    BY    MECHANIC'S   LIEN.         §§  1029-1030 

to  the  State  of  Oklahoma  for  the  use  of  all  the  persons  in 
whose  favor  liens  might  accrue  by  virtue  of  the  statute, 
conditioned  for  the  payment  of  all  claims  v^^hich  might  be 
the  basis  of  liens,  which  bond  is  required  to  be  in  a  sum 
not  less  than  the  contract  price,  and  with  good  and  sufficient 
sureties,  whose  qualifications  shall  be  verified  in  accordance 
with  the  section  of  the  statute  of  the  code  of  civil  procedure 
(Snyder,  6259;  Wilson,  4919),  such  surety  as  shall  be  ap- 
proved by  the  clerk  of  the  district  court  in  the  county  in 
which  the  property  is  situated,  and  may  file  such  bond  in 
the  office  of  said  clerk ;  and  when  such  bond  is  so  approved 
and  filed,  no  lien  can  attach  under  the  provisions  of  this 
chapter,  and  if  when  such  bond  is  filed  and  liens  have  already 
been  filed,  said  liens  shall  be  discharged.^°  Suits  may  be 
brought  on  said  bond  by  any  person  interested. 

Sec.  1029.     Bond  of  contractor  for  public  building. 

Wlienever  any  public  officer  shall,  under  the  laws  of 
the  State,  enter  into  a  contract  in  any  sum  exceeding  one 
hundred  dollars  with  any  person  or  persons,  for  the  purpose 
of  making  any  public  improvements,  or  constructing  any 
public  building,  or  making  repairs  on  the  same,  said  officer 
must  take  from  the  party  contracted  with,  a  bond  with  good 
and  sufficient  sureties  to  the  State  of  Oklahoma,  in  a  sum 
not  less  than  the  sum  total  in  the  contract,  conditioned  that 
such  contractor  or  contractors  shall  pay  all  indebtedness  in- 
curred for  labor  or  material  furnished  in  the  construction 
of  such  public  building  or  in  making  such  public  improve- 
ments.^^ 

Sec.  1030.    Where  such  bond  to  be  filed. 

Such  bond  shall  be  filed  in  the  office  of  the  clerk  of 
the  district  court  in  the  county  where  such  public  improve- 
ment is  to  be  made,  or  such  public  building  to  be  erected. 
And  any  person  to  whom  there  is  due  any  sum  of  money 

30  Snyder,  6,163;  Wilson,  4,829.  3i  Snyder,  6164;   Wilson,  4,834. 


§§  1031-1033         merwine's  trial  op  title  to  land,  728 

for  labor  or  material  furnished,  as  stated  in  the  preceding 
paragraph,  or  his  assigns,  may  bring  an  action  on  said 
bond  for  the  recovery  of  said  indebtedness :  Provided,  that 
no  action  can  be  brought  on  said  bond  after  six  months  from 
the  completion  of  such  public  improvements  or  public 
buildings.^^ 

Sec.  1031.  Lien  for  one  who  has  performed  labor  for  a  rail- 
way company. 
Every  mechanic,  builder,  artisan,  workman,  laborer  or 
other  person,  who  performs  any  work  or  labor  upon,  or  who 
furnishes  any  materials,  machinery,  fixtures  or  other  thing 
towards  the  equipment,  or  to  facilitate  the  operation  of  any 
railroad,  is  given  a  lien  therefor  on  the  roadbed,  buildings, 
equipments,  income,  franchises  or  other  appurtenances  of  said 
railroad,  superior  and  paramount,  whether  prior  in  time  or 
not,  to  that  of  all  persons  interested  in  said  railroad  as 
managers,  lessees,  mortgagees,  trustees  and  beneficiaries 
under  trusts,  or  owners.^^ 

Sec.  1032.     Limitation  for  actions  to  foreclose  the  lien  pro- 
vided for  in  preceding  paragraph. 

The  lien  mentioned  in  the  preceding  paragraph  will  not  be 
effectual  unless  suit  be  brought  on  the  claim  within  one  year 
after  it  accrued.^* 

Sec.  1033.     Judgment  and  collection  of  lien. 

The  said  lien  shall  be  mentioned  in  the  judgment  rendered 
for  the  claimant  in  an  ordinary  suit  for  the  claim,  and  may 
be  enforced  by  ordinary  levy  and  sale  under  final  or  other 
process  at  law  or  equity.^^ 

32  Snyder,    6,165;     Wilson,    4,831.  of   the   Kansas   statute,    Sees.    4,747 

The   report  of  the  majority  of   the  and  4,748    (1891). 
code    commissioners    was    that    the  33  Snyder,  6,166. 

two  foregoing  sections  of  the  statute  34  Snyder,  6,167. 

do  not  appear   in   the  enrolled  bill,  35  Snyder,  6,168. 

which  are  in  corresponding  sections  » 


729  REAL    ESTATE    SOLD   BY    MECHANIC'S   LIEN.      §§1034,1035 

Sec.  1034.     The  notice  to  be  given. 

Provided,  that  a  notice  of  ten  days  be  given  to  the  railroad 
of  the  existence  of  the  claim  or  the  intended  lien  which  is 
contemplated  in  section  3964  shall  have  been  given.^* 


Sec.  1035.  Manner  of  obtaining  lien  upon  leasehold  for  ma- 
chinery, material  and  labor  furnished  for 
developing  oil  and  gas  wells. 
Any  person,  or  corporation,  or  copartnership,  who,  under  a 
contract,  express  or  implied,  with  the  owner  of  any  lease- 
hold for  oil  and  gas  purposes,  or  the  owner  of  any  gas  pipe 
line  or  oil  pipe  line,  or  with  the  trustee  of  agent  of  such 
owner,  performs  labor  or  furnishes  material,  machinery  and 
oil  well  supplies  used  in  the  digging,  drilling,  torpedoing, 
completing,  operating  or  repairing  of  any  oil  or  gas  well,  or 
furnishes  any  oil  well  supplies  or  performs  any  labor  in  con- 
structing or  putting  together  any  of  the  machinery  used  in 
drilling,  torpedoing,  operating,  completing  or  repairing  of  any 
gas  well,  will  be  given  a  lien  on  the  whole  of  said  leasehold 
or  oil  pipe  line,  or  lease  for  oil  and  gas  purpose,  the  buildings, 
and  appurtenances,  and  upon  the  materials  and  supplies  so 
furnished,  and  upon  said  oil  and  gas  wells  for  which  they 
were  furnished,  and  upon  all  other  oil  wells,  fixtures  and  ap- 
pliances used  in  operating  for  oil  and  gas  purposes  upon  the 
leasehold,  for  which  such  material  and  supplies  were  fur- 
nished or  labor  performed.  Such  lien  will  be  preferred  to 
all  other  liens  or  incumbrances  which  may  attach  to  or  upon 
said  leasehold  for  gas  or  oil  purposes,  and  upon  any  oil  pipe 
line  or  gas  pipe  line,  or  such  oil  and  gas  wells,  and  the 
material  and  machinery  so  furnished  and  the  leasehold  for 
oil  and  gas  purposes,  and  the  fixtures  and  appliances  thereon, 
subsequent  to  the  commencement  of,  or  furnishing  or  putting 
up  of  any  such  machinery  or  supplies.^^ 


36  Snyder,  6,169.  37  Snyder,     6,170;     act     approved 

March  15,   1905. 


§§  1036, 1037       merwine's  trial  of  title  to  land.  730 

Sec.  1036.    Subcontractor  may  obtain  lien  in  same  manner  as 
contractor. 

Any  person,  corporation  or  copartnership,  who  furnishes 
such  machinery,  or  supplies  to  a  subcontractor,  or  under  a 
contractor,  or  any  person  who  performs  such  labor  under  a 
subcontract  with  a  contractor,  or  as  an  artisan  or  day 
laborer  in  the  employ  of  such  contractor,  performs  any  such 
labor,  may  obtain  a  lien  upon  said  leasehold  for  gas  and 
oil  purposes,  or  any  gas  pipe  line  or  any  oil  pipe  line  from 
the  same  tank  and  in  the  same  manner  and  to  the  same 
extent  as  the  original  contractor  for  the  amount  due  him 
for  such  labor  as  provided  in  the  preceding  paragraph  of  this 
chapter,^^ 

Sec.  1037.    The  manner  of  enforcing  such  lien. 

The  liens  herein  created  are  enforced  in  the  same  manner, 
and  notices  of  same  are  to  be  given  in  the  same  manner,  and 
the  materialman's  statement,  or  the  lien  of  the  laborer  herein 
mentioned,  must  be  filed  in  the  same  manner  as  provided  for 
in  this  chapter,  and  all  actions  brought  for  the  purpose  of 
enforcing  any  such  liens  must  be  governed  by  this  chapter.^^ 

In  the  chapter  herein  on  sale  of  real  estate  under  an  execu- 
tion, there  will  be  found  a  full  statement  of  the  sale  of  real 
estate  by  an  order  of  sale,  and  also  under  a  writ,  venditioni 
exponas,  and  also  a  statement  of  the  law  as  to  the  appraise- 
ment of  the  real  estate  and  as  to  the  procedure  from  the 
time  of  the  order  of  sale  to  the  delivery  of  the  deed  to  the 
purchaser. 


38  Snyder,   6,171 ;      act     approved  39  Snyder,     6,671 ;     act    approved 

March  15,  1905.  March  15,  1905. 


731  REAL   ESTATE    SOLD   BY    MECHANIC'S   LIEN.  §  1038 

Sec.  1038.  Procedure  in  the  foreclosure  of  mechanic's  lien — 
The  form  for  petition  foreclosing  subcontractor's 
lien. 

District  Court,  County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

,  , and  , 

Copartners,  Doing  Business  under 

the    Firm    Name    of    ,    and 

and ,  Defendants. 

PETITION. 

Comes  now  the  plaintiff  above  named,  and,  for  his  cause  of 
action  against  the  defendants,  alleges  and  states: 

1.  First  Cause  of  Action. — That  on  or  about  the day 

of ,  19 — ,  the  defendant,  ,  as  owner,  and  the  de- 
fendants,   , ,  and  ,  copartners,  doing 

business  under  the  name  of ,  as  contractors,  entered  into 

a  certain  written  contract  and  agreement  for  the  erection  and 
construction  of  certain  improvements  on  the  following  described 
real  property,  to-wit:  (Here  specifically  describe  same)  ;  that  the 
plaintiff  is  unable  to  attach  a  copy  of  said  contract  to  this 
petition  for  the  reason  that  the  original  and  all  copies  thereof 
are  in  the  possession  of  the  defendants  and  they  have  failed  and 
refused  to  deliver  to  this  plaintiff  a  copy  of  said  contract ;  that 
on  or  about  the day  of ,  19—,  the  plaintiff,  as  sub- 
contractor, entered  into  an  oral  contract  with  the  defendants, 

,  ,  and ,  copartners,  doing  business 

under  the  name  of ,  for  certain  lumber  and  other  building 

material  to  be  used  in  the  erection  and  construction  of  said 
buildings  on  the  above  described  premises,  at  the  agreed  price 

and  reasonable  value  of  $ ;  that  all  of  said  lumber  and 

other  building  material  was  furnished  at  the  instance  and  request 


§  1038  merwine's  trial  of  title  to  land.  732 

of  the  defendants,  ,  ,  and  ,  copart- 
ners, doing  business  under  the  name  of ,  and  was  used  in 

the  erection  and  construction  of  said  buildings,  in  accordance 

with  the  terms   of  said  contract,   between   the  day  of 

,  19 — ,  and  the  day  of ,  19 — ;  that  there- 
upon   the    defendants,    ,    ,    and    , 


copartners,  doing  business  under  the  name  of  ,  became 

indebted  to  the  plaintiff  in  the  sum  of  $ ;  that  certain 

credits  were  allowed,  aggregating  the  sum  of  $ ,  leaving 

a  balance  due  and  unpaid  in  the  sum  of  $ ,  and,  though 

frequent   demand  has  been   made  on   the   defendants,   , 

, and ,  copartners,  doing  business  under  the 


name  of ,  and  the  said  ,  for  the  payment  thereof; 

that  a  true  and  correct  itemized  and  verified  statement  of  said 
account  is  hereto  attached,  made  a  part  hereof  and  marked 
"Exliibit  A,"  to  which   reference  is  hereafter  made;  that  on 

the day  of ,  19 — ,  and  within  the  time  allowed  by 

law  for  the  making  and  filing  of  the  same,  the  plaintiff,  for  the 
purpose  of  securing  the  payment  of  the  balance  due  him  on  said 
subcontract  for  lumber  and  other  building  material  furnished 
and  used  as  aforesaid  in  the  construction  and  erection  of  said 
buildings,  filed  in  the  office  of  the  clerk  of  the  district  court  of 
County,  State  of  Oklahoma,  a  materialman's  lien  state- 
ment,   duly   verified  by    affidavit   by   his   agent   and   manager, 

,  all  as  provided  by  law ;  that  a  true  and  correct  copy  of 

said  lien  statement,  together  with  the  exhibits  attached  as  a 
part  thereof,  is  hereto  attached,  marked  "Exhibit  A,"  and  made 

a  part  hereof ;  that  on  the day  of ,  19 — ,  plaintiff 

notified  the  defendant,  ,  as  provided  by  law,  of  the  filing 

of  said  lien  statement,  by  serving  upon  it,  through  its  proper 
agents  and  officers,  a  written  notice,  a  true  and  correct  copy  of 
which  is  hereto  attached,  marked  "Exhibit  B,"  and  made  a 
part  hereof. 

2.  Second  Cause  of  Action. — That  the  allegations  and  state- 
ments contained  in  the  first  paragraph  of  his  first  cause  of 
action,  plaintiff  says  are  hereby  made  a  part  of  the  second  cause 
of  action,  as  fully  and  completely  as  if  tl>ey  were  specifically 


733  REAL   ESTATE    SOLD   BY    MECHANIC'S   LIEN.  §  1038 

realleged  and  set  out  herein ;  that  on  or  about  the day  of 

,  19 — ,  the  defendant,  ,  entered  into  a  subcontract 

Avith , , and ,  copartners,  doing  busi- 
ness under  the  name  of ,  as  contractors,  to  perform  certain 

labor  and  furnish  certain  material  in  the  construction  and  erec- 
tion of  said  buildings,  and  according  to  the  terms  and  specifica- 
tions of  the  original  contract ;  that  the  plaintiff  is  unable  to 
attach  a  copy  of  said  contract  hereto,  for  the  reason  that  the 
original  and  all  copies  thereof  are  in  the  possession  of  said 
defendants,  and  they  have  failed  and  refused  to  deliver  to  this 

plaintiff  a  copy  of  said  contract;  that  on  or  about  the  

day  of  ,  19 — ,  the  plaintiff  entered  into  an  oral  contract 

with  the  defendant, ,  as  subcontractor,  whereby  the  plain- 
tiff agreed  to  furnish  to  the  defendant,  certain  lumber 

and  other  building  material,  to  be  used  in  the  erection  and  con- 
struction of  said  buildings  on  the  above  described  premises,  at 

the  agreed  price  and  reasonable  value  of  $ ;  that  all  of 

such  lumber  and  other  building  material  was  furnished  at  the 

instance  and  request  of  said  defendant,  ,  and  was  used 

in  the  erection  and  construction  of  said  buildings  in  accordance 

with  the  terms  of  said  contract,  between  the day  of , 

19 — ,  and  the  day  of  ,  19 — ;  that  thereupon  the 

defendant,  ,  became  indebted  to  the  plaintiff  in  the  sum 

of    $ ;    that    certain    credits    were    allowed,    aggregating 

$ ,   leaving   a   balance    due   and   unpaid  in   the   sum    of 

$ ,  though  frequent  demand  has  been  made  on  the  defend- 
ants,   and ,  for  the  payment  thereof;  that  a  true, 

correct,  itemized  and  verified  statement  of  said  account  is  hereto 
attached,   and  made   a   part   hereof,  marked   "Exhibit   C,"   to 

which  reference  is  hereinafter  made ;  that  on  or  about  the 

day  of ,  19 — ,  and  within  the  time  allowed  by  law  for  the 

making  and  filing  of  the  same,  the  plaintiff,  for  the  purpose  of 
securing  the  payment  of  the  balance  due  him  on  said  subcontract 
for  lumber  and  other  building  material  furnished  and  used  as 
aforesaid  in   the  erection   and  construction  of  said  buildings, 

filed  in  the  office  of  the  clerk  of  the  district  court  of  

County,  State  of  Oklahoma,  a  materialman 's  lien  statement,  duly 


§  1038  merwine's  trial  of  title  to  land.  734 

verified  by  the  affidavit  of  his  agent  and  manager,  ,  all 

as  provided  by  law;  that  a  true  and  correct  copy  of  said  lien 
statement,  together  with  the  exhibits  attached  as  a  part  thereof, 
is   hereto   attached,   marked   "Exliibit   D,"   and   made   a   part 

hereof ;  that  on  the day  of ,  19 — ,  plaintiff  notified 

the  defendant,  ,  as  provided  by  law,  of  the  filing  of  said 

lien  statement,  by  serving  upon  it,  through  its  proper  agents 
and  officers,  a  written  notice,  a  true  and  correct  copy  of  which 
is  hereto  attached,  marked  "Exhibit  E,"  and  made  a  part  hereof. 

That  plaintiff  alleges  further  and  as  a  part  of  each  of  the 

foregoing  causes  of  action,  that  the  defendant,  ,  was,  and 

at  all  times  since  has  been,  the  legal  owner  of  the  following 

described  property  and   premises,  situated  in   County, 

State  of  Oklahoma,  to-wit :  (Here  describe  real  estate.) 

Wherefore,  plaintiff  prays  that  he  have  and  recover  judg- 
ment against  the  defendants, , , and , 

copartners,  doing  business  under  the  name  of  ,  and  each 

of  them,  in  the  sum  of  $ ,  with  interest  thereon  from  the 

day  of ,  19 — ,  at  the  rate  of per  cent,  per 

annum ;  that  he  recover  judgment  against in  the  sum  of 

$ ,  with  interest  thereon  from  the  day  of  , 

19 — ,  at  the  rate  of per  cent,  per  annum ;  that  a  decree  of 

said  court  be  entered,  declaring  and  establishing  the  liens  of  the 
plaintiff  upon  the  real  estate  hereinabove  described,  together 
with  all  the  improvements  thereon ;  that  said  liens  be  foreclosed 
and  an  order  entered  directing  the  sale  of  said  real  estate,  with 
the  improvements  thereon,  subject  to  appraisement  at  public 
auction,  as  in  cases  of  sales  upon  execution,  according  to  law; 
that  the  rights  and  equities  of  all  parties  to  this  action  be  de- 
termined by  the  court;  that  said  plaintiff's  liens  against  said 
real  estate  be  declared  prior  and  superior  to  any  interest  or  title 
claimed  by  the  defendants,  or  either  of  them;  that  the  proceeds 
of  the  sale  of  said  real  estate  be  applied,  first,  to  the  payment  of 
all  costs  in  said  action.  Second,  to  the  payment  of  plaintiff's 
judgments.  Third,  the  residue,  if  any,  to  be  paid  to  the  clerk 
of  said  court  to  await  the  further  order  of  the  court. 


735  REAL   ESTATE   SOLD   BY    MECHANIC'S   LIEN.  §  1039 

Plaintiff  further  prays  for  all  costs  of  this  action  laid  out  and 
expended,  and  for  such  other  and  further  relief  as  may  be  just 

and  equitable. ^ 

Attorneys  for  Plaintiff. 
(Here  attach  exhibits  mentioned  and  designated.) 
But  it  is  to  be  observed  that  these  are  attached  as  a  matter 
of   convenience.      If   objection   is   made   they   will   be   stricken 
from  the  petition,  except  the  exhibits  setting  out  a  note  or  an 
account. 


Sec.  1039.  Procedure  by  which  a  mechanic's  lien  is  fore- 
closed— The  petition  for  foreclosure  of  lien, 
setting  forth  a  sing-le  cause  of  action  upon  a 
materialman's  lien. 

District  Court,  County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No. 
and ,  Defendants. 


PETITION. 

Comes  now  the  plaintiff  above  named,  and,  for  his  cause  of 
action  against  the  defendants,  alleges  and  states: 

That  the  defendants  were,  on  and  prior  to  the  day  of 

,  19 — ,  and  at  all  times  since  have  been  the  o-wTiers  of  the 

following    described    real   property   and    premises,   situated   in 

County,  Oklahoma,  to-wit :  (Here  describe  real  estate.) 

That  on  or  about  the day  of ,  19 — ,  this  plaintiff 

entered  into  an  oral  contract  with  the  defendants,  whereby  he 
agreed  to  furnish  to  said  defendants  certain  lumber  and  material 
to    be    used    in    the    erection    and    construction    of    a    certain 

building    on    the    premises    above    described,    and    at 

the  agreed  price  and  of  the  reasonable  value  of  $ ;  that 

all  of  said  lumber  and  material  so  contracted  were  furnished  and 
used  in  the  erection  and  construction  of  said  building,  between 

the day  of  ,  19—,  and  the  day  of , 

19 — ;  that  certain  payments  were  made  on  said  indebtedness, 


§1039  merwine's  trial  of  title  to  land.  736 

aggregating  the  sum  of  $ ,  leaving  a  balance  due  plaintiff 

from  said  defendants  in  the  sum  of  $ ,  no  part  of  which  has 

been  paid,  though  frequent  demand  has  been  made  on  defend- 
ants for  the  payment  thereof;  that  a  true  and  correct  and  item- 
ized and  verified  statement  of  said  account  is  hereto  attached, 
made  a  part  hereof,  marked  "Exhibit  B,"  to  which  reference  is 
hereinafter  made. 

That  on  the day  of ,  19 — ,  and  within  the  time 

allowed  by  law  for  the  making  and  filing  of  the  same,  this  plain- 
tiff, for  the  purpose  of  securing  the  payment  of  the  balance  due 
him  on  said  account  for  lumber  and  material  furnished  and  used 
as  aforesaid  in  the  erection  and  construction  of  said  building, 

filed  in  the  office  of  the  clerk  of  the  district  court  of  

County,  Oklahoma,  a  mechanic's  lien  statement,  duly  verified 
by  affidavit,  all  as  provided  by  law ;  that  a  true  and  correct  copy 
of  said  lien  statement,  together  with  the  exhibits  attached  as 
part  thereof,  is  hereto  attached,  as  a  part  hereof  and  marked 

"Exhibit  A."    That  on  or  about  the day  of ,  19—, 

and  for  the  purpose  of  securing  the  payment  of  the  amount  due 
on  said  contract  for  lumber  and  material  furnished  and  used  in 
the  erection  and  construction  of  said  building,  as  aforesaid,  this 
plaintiff  filed  in  the  office  of  the  clerk  of  the  district  court  of 
County,  Oklahoma,  an  amended  mechanic's  lien  state- 
ment, duly  verified  by  the  affidavit  of  ,  as  agent,  all  as 

provided  by  law ;  that  a  true  and  correct  copy  of  said  amended 
lieu  statement,  together  with  the  exhibits  attached  as  a  part 
thereof,  is  hereto  attached,  marked  "Exhibit  C,"  and  made  a 
part  hereof. 

Wherefore,    plaintiff    prays    that    he    may    have    judgment 

against  the  defendants, and ,  and  each  of  them,  in 

the  sum  of  $ ,  with  interest  thereon  from  the  day 

of  ,  19 — ;  that  a  decree  of  this  court  be  had,  declaring 

and  establishing  the  lien  of  plaintiff  on  the  real  estate  herein- 
above described ;  that  he  may  have  foreclosure  of  said  lien,  and 
an  order  for  sale  of  said  real  property  and  premises,  and  all 
improvements  thereon,  subject  to  appraisement,  at  public  venue 
as  in  eases  of  sales  upon  execution,  according  to  law,  and  for  all 


737  REAL   ESTATE    SOLD   BY    MECHANIC'S   LIEN.  §  1040 

costs  in  this  action  expended,  and  such  further  and  general  relief 
as  the  plaintiff  may  be  entitled  to  in  the  premises. 


Attorneys  for  Plamiiff. 

(Here  attach  exhibits  above  mentioned  and  designated.) 
(The  form  for  summons  and  the  sheriff's  return  thereof  are 

the  same   as  in  other  actions.     See  sees.  and  , 

herein,  for  form.) 

Sec.  1040.     Form  for  answer  admitting  the  allegations  of  the 
petition  and  consenting  to  the  prayer  thereof. 

District  Court,  County,  State  of  Oklahoma. 

,  Flaintiff, 

vs.  No.  . 

and ,  Defendants. 


ANSWER  OF 


Comes   now   the   defendant,  ,   and  for  his   answer   to 

plaintiff's  petition  filed  herein,  states  that  he  admits  each  and 
all  the  allegations  in  said  petition  contained,  and  hereby  con- 
sents that  judgment  be  rendered  in  accordance  with  the  prayer 
of  said  petition. 


State  of  Oklahoma, County,  ss. : 

,  of  lawful  age,  being  first  duly  sworn,  states  that  he  is 

one  of  the  defendants  in  the  above  entitled  cause ;  that  the  alle- 
gations and  statements  contained  in  the  above  and  foregoing 
answer  are  true,  and  that  he  consents  to  the  rendition  of  judg- 
ment in  said  cause.  . 

Subscribed  and  sworn  to  before  me  this day  of , 

19—.  , 


My  commission  expires .  Notary  Public. 


§  1041  merwine's  trial  of  title  to  land.  738 

Sec.  1041.    Form  for  notice  for  service  by  publication  for 
nonresident  defendant. 

District  Court,  County,  State  op  Oklahoma. 

,  Plaintiff, 


vs.  No. 
and ,  Defendants. 


NOTICE    FOR    SERVICE    BY    PUBLICATION. 

The  defendant,  ,  will  take  notice  that  he  has  been  sued 

in  the  above  entitled  court  by  the  above  named  plaintiff  for  the 

sum  of  $ ,  which  plaintiff  alleges  to  be  due  and  payable 

under  and  by  virtue  of  the  terms  of  an  oral  contract  between 

the  plaintiff  and  the  defendants,  and  ,  whereby 

said  plaintiff  agreed  to  furnish  to  said  defendants  certain  lumber 
and  material  to  be  used  in  the  erection  and  construction  of  a 
certain  frame  business  building  on  the  real  estate  described 
as  follows,  to-wit:  (Plere  describe  the  same),  which  material  and 
lumber,  it  is  alleged,  were  furnished  in  accordance  with  the 
terms  of  said  contract,  and  the  balance  due  this  plaintiff  is  the 
amount  hereinabove  set  out;  that  in  such  action  it  is  alleged 
and  shown  that  said  plaintiff  has  duly  filed  and  perfected  accord- 
ing to  law,  his  mechanic's  lien  on  said  property,  to  secure  the 
payment  of  the  balance  due  on  said  contract,  and  that  said 
mechanic's  lien  is  not  a  valid  and  subsisting  lien  on  said  prop- 
erty, and  which  said  property  above  described  is  the  property 
of  the  said  defendants. 

Said  defendant  is  hereby  notified  to  answer  herein  before  the 

day  of  ,  19 — ,  or  judgment  will  be  taken  against 

him  for  the  sum  of  $ ,  with  interest  thereon   from  the 

day  of ,  19—,  at  the  rate  of per  cent.,  and 

for  all  costs  of  this  action.  Also  that  a  decree  will  be  entered 
declaring  and  establishing  the  lien  of  plaintiff  on  said  real  estate 
hereinbefore  described,  and  for  the  foreclosure  of  said  lien,  and 
for  an  order  of  sale  of  said  real  property  and  premises,  and  the 


739  REAL    ESTATE    SOLD    BY    MECHANIC 's    LIEN.  §  1042 

improvements  thereon,  aecording  to  law,  for  the  satisfaction  of 

said  judgment.  — — , 

[Seal.]  Clerk  of  the  District  Court,  County. 


Attorneys  for  Plaintiff. 

Sec.  1042.     Form  for  the  affidavit  for  service  by  publication. 

District  Court,  County,  State  of  Oklahoma. 

-,  Plaintiff, 


vs.  No. 

and ,  Defendants. 


AFFIDAVIT    FOR    SERVICE    BY    PUBLICATION. 

,  of  lawful  age,  being  first  duly  sworn,  states  that  he  is 


the  agent  for  the  plaintiff,  ;  that  said  plaintiff  is  now 

absent  from  the  county  of ,  and  the  statements  and  alle- 
gations hereinafter  made  are  within  the  personal  knowledge  of 
this  affiant;  that  on  the day  of ,  19 — ,  said  plain- 
tiff filed  in  the  office  of  the  clerk  of  the  district  court  of  

County,  Oklahoma,  his  petition  against  the  defendants,  

and  ,  for  the  recovery  of  the  sum  of  $ ,  being  the 

balance  due  plaintiff  from  the  defendants  for  lumber  and  ma- 
terial furnished  said  defendants  to  be  used  in  the  erection  and 
construction  of  a  certain  frame  business  building  on  the  follow- 
ing described  real  estate,  to-wit:  (Here  describe  the  same)  ;  and 
also  sought  to  foreclose  a  mechanic's  lien  in  his  favor  on  said 

property  for  the  payment  of  said  sum  of  $ ,  stating  that 

the  defendants  were  on  and  prior  to  the  day  of , 

19 — ,  and  at  all  times  since  have  been  the  owners  of  the  above 
described  property. 

In  said  petition  it  was  alleged  that  on  the  day  of 

,  19 — ,  plaintiff  entered  into  an  oral  contract  with  the 

defendants,  whereby  he  agreed  to  furnish  to  said  defendants 
certain  lumber  and  material  to  be  used  in  the  erection  and  con- 
struction of  a  certain  two-story  frame  business  building  on  the 
premises  above  described,  at  the  agreed  price,  and  of  the  reason- 
able value  of  $ ;  that  all  of  said  lumber  and  material  so 


§  1042  merwine's  trial  of  title  to  land.  740 

contracted  was  furnished  and  used  in  the  erection  and  construc- 
tion of  said  building  between  tlie  said  day  of  , 

19 — ,  and  the day  of ,  19 — ;  that  certain  payments 

were  made  upon  said  indebtedness,  aggregating  the  sum  of 
$ ;  leaving  a  balance  due  said  plaintiff  from  said  defend- 
ants in  the  sum  of  $ ,  no  part  of  vrhieh  has  been  paid ;  that 

a  true  and  correct  itemized  and  verified  statement  of  said  ac- 
count was  attached  and  made  a  part  of  said  petition,  marked 
''Exhibit  B." 

In  said  petition  it  was  alleged  that  on   the  day  of 

,  19 — ,  and  within  the  time  allowed  by  law  for  the  making 

and  filing  of  the  same,  the  plaintiff,  ,  for  the  purpose  of 

securing  the  balance  due  him  on  said  contract  for  lumber  and 
material  furnished  and  used  as  aforesaid  in  the  erection  and 
construction  of  said  building,  filed  in  the  office  of  the  clerk  of 

the  district   court  of County,  Oklahoma,   a   mechanic's 

lien  statement,  duly  verified  bj^  affidavit,  all  as  provided  by 
law;  that  a  true  and  correct  copy  of  said  lien  statement,  together 
with  the  exhibits  attached  as  a  part  thereof,  was  attached  to  said 
petition,  marked  "Exhibit  A,"  and  made  a  part  thereof. 

In  said  petition  it  was  alleged  that  on  or  about  the  

day  of  ,  19 — ,  and  for  the  purpose  of  securing  the  pay- 
ment of  the  amount  due  on  said  contract  for  lumber  and  ma- 
terial furnished  and  used  in  the  erection  and  construction  of 

said  building,  as  aforesaid,  said  plaintiff,  ,  filed  in  the 

office  of  the  clerk  of  the  district  court  of  County,  Okla- 
homa, an  amended  mechanic's  lien  statement,  duly  verified  by 

the  affidavit  of ,  his  agent,  all  as  provided  by  law;   a 

true  and  correct  copy  of  said  amended  lien  statement,  together 
with  the  exhibits  thereto  attached  as  a  part  thereof,  was  at- 
tached to  said  petition,  marked  "Exhibit  B"  and  made  a  part 
thereof. 

That  in  said  petition  plaintiff  prayed  for  judgment  against 

the  defendants,  and  ,  and  each  of  them,  in  the 

sum  of  $ ,  with  interest  thereon,  from  the  day  of 

>  19 — ,  at  the  rate  of per  cent,  per  annum;  for  a 


741  REAL    ESTATE    SOLD   BY    MECHANIC'S    LIEN.  §  1042 

decree  of  the  district  court  of  County,  Oklahoma,  de- 
claring and  establishing  the  lien  of  the  plaintiff  on  said  real 
property,  and  for  a  foreclosure  of  -"aid  lien,  and  for  an  order  for 
the  sale  of  the  same,  and  all  improvements  thereon,  subject  to 
appraisement,  at  public  venue  as  in  cases  of  sale  upon  execu- 
tion, according  to  law,  and  for  all  costs  in  said  action  expended, 
and  for  such  other  and  general  relief  as  the  plaintiff  might  be 
entitled  to  in  the  premises,  and  said  action  is  one  for  the  re- 
covery of  money  and  for  the  sale  of  the  real  property  above 
described  under  a  mechanic's  lien. 

Affiant  further  states  that  on  the day  of ,  19 — , 

the  above  named  plaintiff  caused  summons  to  be  issued  out  of 

the  office  of  the  clerk  of  the  district  court  of  County, 

Oklahoma,  for  the  defendants,  and ,  directed  to 

the  slieriff  of  said  county  of  for  execution.     That  said 

sheriff  made  due  diligence  to  obtain  service  on  said ,  but 

made  return  to  the  effect  that  said  was  not  found  in 

said  county;  that,  in  addition  to  causing  said  summons  to  be 
issued  as  aforesaid,  plaintiff,  his  agents  and  attorneys,  have 
made  diligent  inquiry  at  the  last  known  place  of  residence  of 
said  defendant,  and  various  other  places  in  this  State,  but  have 
been  unable  to  locate  said  defendant,  and  are  informed  that  he 
resides  somewhere  in  the  State  of  . 

Affiant  further  states  that  said  was,  at  the  time  of  the 

filing  of  said  petition,  and  at  all  times  since  has  been,  and  now 
is,  a  nonresident  of  the  State  of  Oklahoma,  and  absent  there- 
from, and  that  plaintiff  is  now,  and  at  all  times  since  the  filing 
of  said  petition  has  been,  unable  to  obtain  service  of  summons 
on  the  said  defendant  in  the  State  of  Oklahoma. 

Affiant  further  states  that  plaintiff  now  desires  to  obtain  serv- 
ice on  said  defendant  by  publication. 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


[Seal.]  Notary  Public. 

My  commission  expires  . 


§  1043  MERWINE  'S   TRIAL   OF    TITLE   TO    LAND.  742 

Sec.  1043.    Form  for  service  by  publication. 

District  Court,  County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No.  . 

and ,  Defendants. 


NOTICE   AND   SERVICE   BY   PUBLICATION. 

The  above  will  take  notice  that  he  has  been  sued  in 

the  above  entitled  court  by  the  above  named  plaintiff  for  the 

sum  of  $ ,  which  plaintiff  alleges  to  be  due  and  payable 

under  and  by  virtue  of  the  terms  of  an  oral  contract  between 

the  plaintiff, ,  and  the  defendants,  and  , 

whereby  said  plaintiff  agreed  to  furnish  to  said  defendants 
certain  lumber  and  material  to  be  used  in  the  erection  and  con- 
struction of  a  certain  frame  business  building  on  the  following 
described  real  estate,  to-wit:  (Here  specifically  describe  real  es- 
tate), which  lumber  and  material,  it  is  alleged,  was  furnished 
as  provided  in  said  contract,  and  the  balance  due  this  plaintiff 
is  the  amount  hereinabove  stated.  That  in  said  action  he  has 
duly  filed  and  perfected  his  mechanic's  lien  on  said  property  to 
secure  the  payment  of  the  balance  due  on  said  contract,  and  that 
said  mechanic's  lien  is  now  a  valid  and  subsisting  lien  on  said 
property 

In  said  petition  it  was  alleged  that  the  real  property  therein 
described  is  the  property  of  the  said  defendants. 

Said  defendant,  ,  is  hereby  notified  to  answer  herein 

before  the day  of ,  19—,  or  judgment  will  be  taken 

against  him  for  the  sum  of  $ ,  with  interest  thereon  from 

the day  of ,  19—,  at  the  rate  of per  cent. 

per  annum,  and  for  all  costs  of  this  action ;  also  a  decree  will  be 
entered,  declaring  and  establishing  the  lien  of  the  plaintiff  on 
said  real  estate  hereinbefore  described,  also  for  a  foreclosure 
of  said  lien  and  for  an  order  of  sale  of  the  real  estate  and  prem- 


743  REAL   ESTATE   SOLD   BY    MECHANIC'S   LIEN.    §§1044,1045 

ises,  and  all  improvements  thereon,  according  to  law,  for  the 
satisfaction  of  said  judgment. 


Clerk  of  the  District  Court  of County,  Oklaliotna. 

[Seal.] 


Attorneys  for  Plaintiff. 

Sec.  1044.    Form  for  proof  of  publication. 

State  of  Oklahoma, County,  ss. : 

,  being  duly  sworn,  deposes  and  says  that  he  is  the 

of ,  a  weekly  newspaper  printed  and  published  in 


the  town  of , County,  Oklahoma,  which  newspaper 

has  been  legally  published,  with  a  hona  fide  subscription  list,  and 
of  general  circulation  in  said  county  for  fifty-two  consecutive 
weeks  next  preceding  the  date  of  the  first  publication  of  the 
notice  hereto  attached;  that  the  notice,  of  which  the  attached  is 
a  true  copy,  was  published  once  each  week  for consecu- 
tive weeks  in  said  newspaper,  the  same  being  the  regular  issues 
of  the  following  dates : and ,  19 — . 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


[Seal.]  Notary  Public. 

My  commission  expires  . 

Sec.  1045.     Form  for  the  decree  of  court  foreclosing  the  lien. 

District  Court,  County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No.  . 

and ,  Defendants. 

DECREE    FORECLOSING    LIEN. 

This  cause   coming  on  to   be  heard  on  this  day  of 

,  19 — ,  the  same  being  one  of  the  regular  judicial  days  of 


§  1045  merwine's  trial  of  title  to  land.  744 

l\^(, J  19 —  Term  of  this  court,  and  the  plaintiff  appearing 

by  his  attorneys,  ,  and  the  defendant, ,  appearing, 

and  having  filed  his  ansAvcr  admitting  each  and  all  of  the  alle- 
gations contained  in  the  petition  of  this  plaintiff,  and  consenting 
that  judgm^ent  be  rendered  in  accordance  with  the  prayer  of 
said   petition,  and  it  appearing  to   the   court  that   defendant, 

,  has  been  duly  notified  more  than  forty-one  days  prior 

to  this  date  of  the  pendency  of  this  action,  as  required  by  law, 

by  publication  of  notice  thereof  for  consecutive  weeks 

in   ,    a   newspaper,   printed   and    of    general   circulation 

in  County,  which  said  service  is  regular  in  all  respects, 

and   is   hereby    approved   by   this    court,   and   said   defendant, 

,  having  been  three  times  called  in  open  court  to  appear, 

answ^er,  demur  or  plead  to  the  petition  of  the  plaintiff  herein, 
came  not,  but  made  default,  and  the  court,  having  ordered  that 
said  defendant  is  in  default,  and  having  ordered  that  the  alle- 
gations contained  in  plaintiff's  petition  be  taken  as  confessed, 
and  the  court,  having  heard  the  evidence  and  the  testimony  of 
M'itnesses  examined  in  open  court,  and  being  fully  advised  in 
the  premises,  in  consideration  thereof,  finds  that  all  the  allega- 
tions in  plaintiff's  petition  are  true  as  therein  set  forth;  that 
the  defendants,  and  ,  were  on  and  prior  to  the 

day  of  ,  19 — ,  and  at  all  times  since  have  been, 

the  owners  of  the  following  described  real  estate  situated  in 

County,   Oklahoma,  to-wit:    (Here  describe  the  same), 

and  that  on  or  about  the day  of ,  19 — ,  this  plaintiff 

entered  into  a  contract  with  said  defendants  to  furnish  to  them 
certain  lumber  and  material  to  be  used  in  the  erection  and  con- 
struction of  a  certain  frame  building  on  the  premises  described 
above,    at   the   agreed    price   and   of   the    reasonable    value   of 

$ ,  and  that  all  such  lumber  and  material  so  contracted 

was  furnished  and  used  in  the  erection  and  construction  of  said 

building  between  the day  of ,  19 — ,  and  the 

day  of  ,  19 — ;  that  certain  payments  were  made  on  said 

indebtedness,  aggregating  the  sum  of  $ ,  leaving  a  balance 

due  this  plaintiff  from  said  defendants  in  the  sum  of  $ , 

no  part  of  which  has  ever  been  paid;  that  on  the day  of 


745  REAL   ESTATE    SOLD    BY    MECHANIC'S    LIEN.  §  1045 

,    19 — ,   and   within    the   time    allowed   by   law   for   the 

making  and  filing  of  the  same,  this  plaintiff  filed  in  the  office  of 

the  clerk  of  the  district  court  of  County,  Oklahoma,  a 

mechanic's  lien  statement,  duly  verified  by  affidavit,  all  as  pro- 
vided by  law;  that  on  the  day  of ,   19 — ,  this 

plaintiff  filed  in  the  office  of  the  clerk  of  the  district  court  of 

County,   Oklahoma,   an   amended  lien   statement,    duly 

verified  by  the  affidavit  of  his  agent,  all  as  required  by  law. 

And  it  further  appearing  to  the  court  that  there  is  due  this 

plaintiff  from   defendants   the   sum   of  $ ,   with    interest 

thereon  from  the  day  of ,  19—,  at  the  rate  of 

per  cent,  per  annum,  and  that  the  plaintiff',  ,  has 

filed  a  lien  on  the  property  of  said  defendants  above  described, 
it  is  hereby  ordered,  adjudged  and  decreed  that  the  plaintiff 

have  judgment  against  the  defendants  in  the  sum  of  $ , 

and  interest  thereon  at  the  rate  of per  cent,  per  annum 

from  the day  of ,  19 — ,  and  the  costs  in  this  action 

expended;  that  the  plaintiff's  lien  is  a  valid  and  subsisting  lien 
on  the  property  of  the  defendants,  to-wit:  (Here  specifically 
describe  real  estate)  ;  that  the  same  be  foreclosed  and  an  order 

of  sale  be  issued  to  the  sheriff  of  County,   Oklahoma, 

commanding  him  to  appraise,  advertise  and  sell  as  upon  execu- 
tion and  according  to  law,  said  real  estate  at  public  sale  accord- 
ing to  law%  and  apply  the  proceeds  derived  from  said  sale,  first, 
in  payment  of  the  costs  of  said  sale  and  of  this  action.    Second, 

in  payment  to  said  plaintiff  in  the  sum  of  $ ,  and  interest 

thereon  ?t  the  rate  of per  cent,  per  annum,  from  the 

day  of ,  19 — ,  and  that  the  residue,  if  any,  be  paid 

to  the  said  defendants. 

If  the  amount  derived  from  such  sale  is  insufficient  to  satisfy 
the  judgment  and  costs,  let  execution  issue  against  the  defend- 
ants,   and  ,  for  the  remainder  unpaid. 

It  is  further  ordered  and  adjudged  by  this  court  that  from 
and  after  the  sale  of  said  real  estate  above  described  under  and 

by  virtue  of  this  decree  that  said  defendants, and , 

and  all  persons  claiming  under  them,  since  the  commencement 
of  this  action,  be,  and  they  are  forever  barred  and  foreclosed 


§  1046  merwine's  trial  op  title  to  land.  746 

from  any  right,  title  or  interest  in  and  to  said  real  estate,  or 

any  part  thereof.  , 

Judge  of  said  Court. 


Sec.  1046.    Form  for  execution  in  such  case. 

State  of  Oklahoma, County,  ss. : 


Plaintiff, 


vs. 
and ,  Defendants. 


In  the  District  Court. 
No. . 


State  of  Oklahoma  to  the  Sheriff  of County,  Greeting: 

Whereas,  ,  on  the  day  of  ,  19 — ,  ob- 
tained a  judgment  in  the  district  court  of County,  State 

of  Oklahoma,  against and ,  for  the  sum  of  $ , 

together  with  interest  at  the  rate  of per  cent,  per  annum 

from  the  day  of  ,  19 — ,  and  the  sum  of  $ 

accrued  costs  and  clerk's  costs  accruing  in  the  sum  of  $ , 

and  there  remains  unpaid  the  sum  of  $ ,  with  interest  on 

the  same  from  the day  of ,  19 — ,  at  the  rate  afore- 
said, and  said  cost  and  accruing  costs ;  and. 

Whereas,  by  the  judgment  of  said  court,  the  following  de- 
scribed property  was  charged  with  the  payment  of  said  judg- 
ment, to-wit:  (Here  specifically  describe  said  real  estate.) 

Now,  Therefore,  you  are  hereby  commanded  to  cause  said 
property  above  described  to  be  advertised  and  sold  according  to 
law,  and  make  return  of  this  order  of  sale  showing  the  manner 
in  which  you  have  executed  the  same  within  sixty  days  from 
the  date  hereof. 

In  Witness  Whereof,   I  have   hereunto  set   my  hand   and 

afBxed  the  seal  of  said  court  at  ,  in  said  county,  this 

day  of  ,  19—. 


[Seal.]  Clerk  of  the  District  Court. 


747  REAL  ESTATE  SOLD  BY  MECHANIC'S  LIEN.  §  1047 

Sec.  1047.     Form  for  appraisement  of  real  estate. 

District  Court,  County,  State  op  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

and ,.  Defendants. 


I,   ,  sheriff  of  said  county  of  ,   Oklahoma,   do 

hereby  call  an  inquest  of ,  and ,  three  dis- 
interested householders  who  are  resident  within  said  county  of 

,  to  impartially  estimate  and  appraise  upon  actual  view 

the  following  described  real  estate,  situated  in  said  county  of 
,  to-wit :  (Here  describe  said  real  estate.) 

They  will  first  take  and  subscribe  the  following  oath,  then 
proceed  forthwith  to  make  and  return  to  me  under  their  hands  an 
estimate  of  the  real  value  of  said  property. 

Witness  my  hand  this day  of ,  A.  D.  19 — . 


Sheriff. 


OATH    OF    APPRAISERS. 


State  of  Oklahoma,  County,  ss. : 

We  do  solemnly  swear  that  we  are  disinterested  householders 
resident  wdthin  said  county  of  ,  and  that  we  will  impar- 
tially appraise,  upon  actual  view,  the  real  estate  above  described, 

and  forthwith  return  to  the  sheriff  of  said  county  of  , 

under  our  hands,  an  estimate  of  the  real  value  of  said  property. 
So  help  us  God. , 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


Sheriff. 
We,  the  undersigned,  in  pursuance  to  the  foregoing  appoint- 
ment and  oath  to  estimate  and  appraise  the  real  property  afore- 
said, do  hereby  report  to  said  sheriff  that  we  have  performed  the 


§  1048  merwine's  trial  of  title  to  land.  748 

duties  assigned  us,  after  going  upon  and  making  strict  examina- 
tion of  said  property,  we  do,  upon  actual  view  of  said  property, 
estimate  and  appraise  the  real  value  of  the  same  as  follows : 
(Here  specifically  describe  real  estate  and  give  the  value 
thereof. ) 

In  Witness  Whereof,  we  have  hereunto  set  our  hands  this 
dav  of ,  A.  D.  19—. 


Appraisers. 

Sec.   1048.    Form   for   publication   of   sheriff's   sale   of   real 
estate. 

NOTICE    OF    SHERIFF'S    SALE    OF   LAND. 

Notice  is  hereby  given  that,  in  pursuance  of  an  order  of  sale 

issued  out  of  the  district  court  of County,  Oklahoma,  on 

the day  of ,  19 — ,  in  an  action  wherein was 

plaintiff,  and  and  were  defendants,  directed  to 

me,  the  undersigned  sheriff  of County,  commanding  me 

to  levy  upon,  appraise  and  sell  the  following  described  real 
estate,  to-wit:  (Here  describe  it),  to  satisfy  a  judgment  and 
decree  of  foreclosure  of  mechanic's  lien  in  favor  of  said  plain- 
tiff and  against   said  defendants,   obtained  and  made  in  said 

court  on  the day  of ,  19 — ,  for  the  sura  of  $ , 

with  interest  thereon  at  the  rate  of per  cent,  per  annum 

from  the  day  of  ,  19 — ,  and  costs  in  the  sum  of 

$ ,  and  $ accruing  costs,  I  will,  on  the  day 

of ,  19 — ,  at  the  hour  of o'clock,  in  the  afternoon 

of  said  day,  at  the  front  door  of  the  courthouse  in  the  city  of 

,  in County,  and  State  of  Oklahoma,  offer  for  sale 

and  sell  to  the  highest  bidder  for  cash,  the  said  property  above 
described,  or  so  much  thereof  as  will  satisfy  said  judgment,  with 
interest  and  costs. 

Witness  my  hand  this day  of ,  19—. 

Sheriff  of County. 


749  REAL   ESTATE    SOLD    BY    MECHANIC'S    LIEN.   §§  1049,  1050 

Sec.  1049.     Form  for  proof  of  publication. 

State  of  Oklahoma, County,  ss. : 

,  being  duly  sworn,  deposes  and  says  that  he  is 


of ,  a  daily  newspaper  printed  and  published  in  the  city 

of   ,   County,    Oklahoma,    which    newspaper  has 

been  legally  published  with  a  l)ona  fide  subscription  list  and  in 
general  circulation  for  fifty-two  consecutive  weeks  next  pre- 
ceding the  date  of  the  first  publication  of  the  notice  of  which 
the  attached  is  a  true  copy,  was  published  once  each  week  for 

consecutive  weeks  in  said  newspaper,  the  same  being  in 

the  regular  issues  of  the  following  dates : , , 

and ,  19—. 

Subscribed  and  sworn  to  before  me  by ,  the  of 

,  this day  of  ,  19 — , 


[Seal.]  Notary  Public. 

]\Iy  commission  expires  . 

Sec.  1050.  Form  for  sheriff's  return  of  his  proceedings  under 
the  writ,  the  same  being  attached  to  the  back 
of  the  execution  above. 

SHERIFF'S   RETURN. 

Received  the  within  writ  on  the ■  day  of ,  19 — , 

at o'clock,  —  m.,  and,  in  obedience  to  the  commands  of 

said  wTit,  I  summoned  ,  and  ,  three  dis- 
interested householders,  residents  of  this  county,  on  the  

day  of ,  19 — ,  and  administered  to  them  an  oath,  impar- 
tially to  appraise  the   lands   and  tenements   described  in   this 

writ  upon  actual  view,  and  afterward,  on  the  day  of 

,  19 — ,  said  appraisers  returned  to  me  under  their  hands 

and  oath,  that  they  did  upon  actual  view,  estimate  and  impar- 
tially appraise  the  real  value  of  said  property  at  $ .     I 

forthwith  deposited  in  the  office  of  the  clerk  of  the  district  court 
of  this  county  a  certified  copy  of  said  appraisement  on  the 
day  of ,  19 — .     I  thereupon  caused  public  notice 


§  1051  merwine's  trial  of  title  to  land.  750 

of  the  time  and  place  of  sale  of  said  lands  and  tenements  to  be 

given,   by    advertising   the    same    for   more   than   days 

before  the  day  of  sale  in ,  a  newspaper  of  general  circu- 
lation in  this  county,  the  first  of  said  publications  being  made 
on  the  day  of  ,  19 — ,  and  once  each  week  there- 
after for  four  consecutive  weeks  until  the  day  of  sale.  And,  in 
pursuance    of   said   notice,    at   the   time    and   place    mentioned 

therein,  I  did,  on  the day  of ,  19 — ,  at  the  hour  of 

o'clock,  —  m.,  at  the  north  door  of  the  courthouse  of  this 

county,  offer  said  lands  and  tenements  at  public  sale,  and  then 

and  there  came  ,  who  bid  for  said  property  the  sum  of 

$ ,  said  amount  being  more  than  of  the  appraised 

value  thereof,  and  he,  being  the  highest  and  best  bidder  therefor, 
I  then  and  there  struck  off  and  sold  said  lands  and  tenements  to 

the  said ,  for  the  sum  of  $ . 

Dated  this day  of ,  19 — . 


Sheriff  of  County, 


Sec.  1051.    Form  for  order  of  court  approving  sheriff's  sale. 

District  Court,  County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

and  ,  Defendants. 

ORDER  APPROVING  SHERIFF'S  SALE. 

Now,  on  this day  of ,  19 — ,  comes ,  by  his 

attorneys,  ,  and  moves  the  court  to  confirm  the  sale  of 

real  estate  made  by  the  sheriff  of County,  on  the 

day  of  ,  19 — ,  under  an  order  of  sale  issued  out  of  the 

office  of  the  clerk  of  the  district  court  of County,  dated 

the day  of ,  19 — ,  said  sale  being  of  the  following 

described  property,  to-wit:    (Here   specifically   describe  it),  to 

,  for  the  sum  of  $ ,  and  the  court,  having  examined 

the  proceedings  of  said  sheriff  under  said  order  of  sale,  and 
being  satisfied  that  the  same  have  been  performed  in  all  respects 
in  conformity  to  law  and  the  former  orders  of  this  court,  it  is 


751  REAL   ESTATE   SOLD   BY    MECHANIC'S   LIEN.  §  1052 

hereby  ordered,  adjudged  and  decreed  that  said  sale  and  said 
proceedings  in  the  same,  are  hereby  approved  and  confirmed. 

It    is    further   ordered   that   ,   sheriff   of  said   

County,  make  and  execute  to  the  said  purchaser  at  said  sale, 
a  good  and  sufficient  deed  for  the  real  estate  so  sold,  and  the 
clerk  of  this  court  is  hereby  directed  to  enter  an  order  upon  the 
journal  of  this  court,  showing  that  the  court  is  satisfied  of  the 

legality  of  said  sale.    The  said  sheriff, ,  is  hereby  directed 

to  pay  the  proceeds  of  said  sale,  after  deducting  all  costs  and 
expenses  thereof,  to  the  plaintiff, . 


Judge  of  said  Court. 

Sec.  1052.     Form  for  sheriff's  deed  to  purchaser. 

This  Indenture,  made  this  day  of  ,  19 — ,  be- 
tween   ,  as  sheriff  of County,  in  the  State  of  Okla- 
homa, party  of  the  first  part,   and  ,  of  the  county  of 

,  State  of  Oklahoma,  party  of  the  second  part,  Witness- 

eth, 

That,  "Whereas,  by  virtue  of  an  order  of  sale  issued  out  of 

and  under  the  seal  of  the  district  court  of judicial  dis- 
trict of  the  State  of  Oklahoma,  in  and  for  County,  at- 
tested the day  of ,  19 — ,  upon  a  judgment  for  the 

sura  of  $ ,  with  interest  at  per  cent,  per  annum 

from  the  day  of  ,  19 — ,  and  $ costs  recov- 
ered in  said  cause  on  the  day  of  ,  19 — ,  in  case 

number  ,  duly  docketed   in  said   court,   said  judgment 

being  in  favor  of and  against  and  ,  said 

writ  being  in  words  and  figures  as  follows,  to-wit : 
State  of  Oklahoma, County,  ss. : 


In  the  District  Court. 


-,  Plaintiff, 


vs.  No. 
and ,  Defendants. 


The  State  of  OMahoma  to  the  Sheriff  of County,  Greet- 
ing : 

Whereas, ,  on  the day  of ,  19 — ,  obtained 

a  judgment  in  the  district  court  of  County,  State  of 


§1052  merwine's  trial  of  title  to  land.  752 

Oklahoma,  against and  ,  for  the  sum  of  $ , 

together  with  interest  thereon  at  per  cent,  per  annum, 

from  the  day  of  ,  19 — ,  an'd  the  sum  of  $ , 

costs  and  accruing  costs;  and, 

Whereas,  by  judgment  of  said  court,  the  following  described 
property  was  charged  with  the  payment  of  said  judgment,  to- 
wit:  (Here  describe  it.) 

Now,  Therefore,  you  are  hereby  commanded  to  cause  said 
property  above  described  to  be  advertised  and  sold  according  to 
law,  and  make  return  of  this  order  of  sale  showing  the  manner 
in  which  you  have  executed  the  same  within  sixty  days  from  the 
date  hereof. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand   and 

affixed  the  seal  of  said  court  at  ,  in  said  county,  this 

day  of ,  19 — . 


[Seal.]  Clerk  of  said  Court. 

And,  Whereas,  ,  sheriff  aforesaid,  having  caused  the 

premises  described  in  said  order  of  sale  to  be  appraised  and  a 
copy  of  said  appraisement  to  be  filed  in  the  office  of  the  clerk  of 

the  district  court  of County,  and  having  advertised  the 

date  and  place  of  sale  in  the  ,  a  newspaper  printed  and 

of  general  circulation  in  said  county,  for  a  period  of  • 

days  prior  to  the  date  of  said  sale,  and  otherwise  complied  with 
said  order  and  the  provisions  of  the  statutes  of  this  State,  did, 

on  the day  of ,  19 — ,  at  the  door  of  the  courthouse 

in  said  county,  at  o'clock,  —  m.,  of  said  day,  offer  for 

sale  at  public  auction,  the  premises  herein  described,  and  there- 
upon,   having  bid  for  said  premises  the  sum  of  $ , 

and  said  sum  being  the  highest  and  best  bid  therefor,  and  the 

same  being  more  than of  the  appraised  value  thereof,  the 

said  premises  were  then  and  there  sold  to  him ;  and. 

Whereas,  the  court,  at  its  19 —  Term,  having  exam- 
ined the  proceedings  aforesaid,  under  the  terms  of  said  order  of 
sale,  and  being  satisfied  that  said  sale  has  been  held  in  all 
respects  in  pursuance  to  said  judgment  and  order  of  sale,  and 
in  accordance  with  the  provisions  of  the  statute  regulating  such 


753  REAL   ESTATE    SOLD   BY    MECHANIC'S   LIEN.  §  1052 

sale,  did  order  that  said  sale  be  confirmed,  and  that  said  sheriff 

of  said  county  should  convey  said  premises  to  the  said  

by  a  good  and  sufficient  deed. 

Now,   Therefore,   T,  ,   as   sheriff  of  County, 

aforesaid,  party  of  the  first  part,  by  virtue  of  said  writ  and 
order,  and  in  pursuance  of  the  statute  in  such  cases  made  and 

pro\'ided,  and  for  and  in  consideration  of  the  sum  of  $ , 

to  me  in  hand  paid,  by  ,  party  of  the  second  part,  the 

receipt  whereof  is  hereby  acknowledged,  does  grant,  bargain, 
sell  and  convey  unto  said  party  of  the  second  part,  his  heirs 
and  assigns  forever,  the  following  described  real  estate,  to-wit: 
(Here  describe  it),  together  with  all  the  privileges  and  appur- 
tenances thereunto  belonging. 

To  Have  and  to  Hold  said  premises,  with  the  appurtenances 
unto  the  said  party  of  the  second  part,  his  heirs  and  assigns 
forever,  as  fully  and  completely  as  he,  the  said  sheriff,  afore- 
said, by  virtue  of  said  judgment  and  order  of  sale  and  confirma- 
tion, and  the  statutes  of  said  State  may  or  ought  to  grant, 
bargain,  sell  and  convey  the  same. 

In  Witness  "Whereof,  the  party  of  the  first  part  has  hereunto 
set  his  hand  the  day  and  year  first  above  written. 


Sheriff  of County,  State  of  OklaJioma. 

State  of  Oklahoma, County,  ss. : 

Before  me, ,  a  notary  public  in  and  for  said  county  and 

State,  on  this day  of ,  19 — ,  personally  appeared 

,  to  me  known  to  be  the  identical  person  Avho  executed 

the  within  and  foregoing  instrument,  and  acknowledged  to  me 
that  he  executed  the  same  in  his  capacity  therein  stated,  and  as 
his  free  and  voluntary  act  and  deed  for  the  uses  and  purposes 
therein  set  forth.  -^ — , 

[Seal.]  Notary  Public. 

My  commission  expires  . 


CHAPTER   XVIII. 

THE  LAW  AND  PROCEDURE  BY  WHICH  A  MORTGAGE 
ON  REAL  ESTATE  IS  FORECLOSED. 


SECTION 

1053.  The  venue  of  the  action  to 
foreclose  a  mortgage. 

10'54.  The  procedure  incidental  to 
the  action  to  foreclose  a 
mortgage  on  real  estate. 

1055.  Procedure — Necessary    parties 

to  the   action. 

1056.  The    rights    of    purchaser    of 

real  estate  during  fore- 
closure of  the  mortgage. 

1057.  The     law     and    procedure     in 

foreclosing  a  mortgage  when 
one,  not  a  party  to  the 
action,  assumes  it  and 
agrees  to  pay  it. 

1058.  The  indorsement  on  the  sum- 

mons in  the  action  to  fore- 
close a  mortgage. 

1059.  The    affidavit    for    service    by 

publication. 

1060.  Personal     judgment    in    fore- 

closure— May  order  payment 
of  costs  and  attorney  fees — 
Duty  of  sheriff  when  tracts 
lie  in  different  counties — 
Pledge  of  real  estate  can  be 
foreclosed  only  by  order  of 
court. 

1061.  Procedure   after   sale   in   fore- 

closure  of   mortgage. 

1062.  Who  may  mortgage  real  estate. 

1063.  No  witnesses  necessary  to  exe- 

cution of  real  estate  mort- 
gage. 

1064.  Essential     requisites    for    the 

validity  of  a  mortgage. 

1065.  When    husband    or    wife   may 

mortgage  homestead. 


SECTION 

1066.  When    husband    or    wife   con- 

cluded by  mortgage  of  home- 
stead. 

1067.  Who    estopped    from    denying 

validity  of  mortgage. 

1068.  Husband   or    wife   may   mort- 

gage real  estate  not  the 
homestead,   when. 

1069.  Mortgage     not     acknowledged 

or  recorded  valid  as  to  the 
parties  thereto — Must  be 
acknowledged  and  recorded 
to  be  valid  as  to  other 
parties. 

1070.  Mortgages,  how  acknowledged. 

1071.  Recording  mortgage  notice  to 

whom. 

1072.  All     papers     explanatory     of 

grant  or  mortgage  to  be  re- 
corded. 

1073.  Defeasance     clause     must     be 

recorded. 

1074.  Deed  deemed  mortgage,  when. 

1075.  Parol    evidence    admissible   to 

show  nature  of  transaction. 

1076.  Separate  instrument  with  de- 

feasance to  be  deemed  parts 
of  each   other. 

1077.  Innocent  purchaser  protected. 

1078.  Such    instrument    deemed    an 

assignment. 

1079.  Benefits    of    mortgage    accrue 

to  mortgagee. 

1080.  Mortgage     follows      property, 

when. 

1081.  No  mortgage  received  for  rec- 

ord until  acknowledged, 

754 


755 


PROCEDURE    TO   FORECLOSE    MORTGAGE.       §  §  1053,  1054 


SECTION 

1082.  Duty     of     register     of     deeds 

when  mortgage  is  presented 
for  record. 

1083.  Mistake    of   register   of   deeds 

does  not  lose  priority  for 
the  instrument. 

1084.  Mortgage    void    for    want    of 

consideration,   when. 

1085.  Assignment   of   non-negotiable 

note  secured  by  mortgage, 
effective  of. 

1086.  Statutory  form  for  mortgage. 

1087.  Another    statutorj'  form    for 

mortgage. 

1088.  What    is    a    good    and    valid 

mortgage — Waiver  of  ap- 
praisement. 

1089.  The  manner   of  the  discharge 

of  a  mortgage. 

1090.  Discharge  noted  by  recording 

officer,    when. 

1091.  Certificate    of     discharge    re- 

corded,  how. 

1092.  Mortgagee  to  make  certificate 

of  discharge,  when. 

1093.  Note  and  mortgage  construed 

together. 

1094.  Form    for    petition    for    fore- 

closure of  mortgage  where 
third  party  assumes  the 
mortgage  and  agrees  to 
pay  it. 

1095.  Form    for    petition    for    fore- 

closure of  a  mortgage  where 
successive  grantees  have  as- 
sumed and  agreed  to  pay  it. 


SECTION 

1096.  Form  for   petition  seeking  to 

reform  a  mortgage  and  fore- 
close the  same,  marshaling 
the  liens. 

1097.  Form     for      petition     in     an 

action  to  declare  a  deed  a 
mortgage  and  foreclosing 
the  same. 

1098.  The    procedure    by    which    a 

mortgage  is  foreclosed — -Tlie 
form  for  the  petition  in 
foreclosing  a  building  and 
loan  mortgage. 

1099.  Application    for    the    appoint- 

ment of  a  receiver. 

1100.  Tlie  order  appointing  receiver. 

1101.  Affidavit  for  service  by  publi- 

cation. 

1102.  Notice   by   publication. 

1103.  The  proof  of  service  by  publi- 

cation. 

1104.  Decree   of    foreclosure. 

1105.  The    order    of    sale    directed 

from  the  clerk  to  the  sheriff. 

1106.  The    legal   notice   of   the   sale 

by  the  sheriff  under  the 
decree  of  foreclosure. 

1107.  The    proof    of    publication    of 

notice  of  sale. 

1108.  Confirmation  of  sale. 

1109.  Sheriff's    return    of    his    pro- 

ceedings under  the  writ. 

1110.  Sheriff's     deed     to    tlie     pur- 

chaser. 


Sec.  1053.    The  venue  of  the  action  to  foreclose  a  mortgage. 

The  statute  provides  that  the  action  for  foreclosure  of  a 
mortgage  must  be  brought  in  the  county  where  the  land  is 
located.^ 

Sec.  1054.    The  procedure  incidental  to  the  action  to  fore- 
close a  mortgage  on  real  estate. 
Ordinarily  the  action  is  brought  for  a  personal  judgment, 
and  for  the  foreclosure  of  the  mortgage  to  satisfy  the  debt. 


1  Snyder,  6,580. 


§  1054  merwine's  trial  of  title  to  land.  756 

In  such  an  action  service  of  summons  must  be  personal ;  for 
a  personal  judgment  cannot  be  secured  by  constructive 
service,  even  though  the  court  had  jurisdiction  over  the 
property.-  The  usual  form  for  such  petition  is,  in  one  cause 
of  action,  to  declare  on  the  note  in  the  ordinary  way,  and 
in  the  second  cause  of  action,  on  the  mortgage  given  to 
secure  the  same.  The  cause  of  action  setting  forth  the 
mortgage  may,  by  apt  and  accurate  language,  adopt  the  al- 
legations of  the  cause  of  action  declaring  on  the  note,  but  ref- 
erence to  the  adoption  must  be  clear  and  definite,  not  leaving 
any  doubt  as  to  its  meaning.^ 

The  petition  should  allege  the  execution  and  delivery  of 
the  mortgage  to  secure  the  payment  of  the  note,  and  contain 
a  description  of  the  real  estate  and  the  conditions  contained 
in  the  defeasance  clause  of  the  mortgage,  the  default  making 
the  mortgage  absolute,  the  date  of  the  filing  of  the  mort- 
gage in  the  office  of  register  of  deeds,  and  the  date  of  the 
recording  thereof,  and  the  volume  and  page  of  the  record 
thereof,  and  also  a  prayer  for  personal  judgment  and  for 
foreclosure  of  the  mortgage. 

Where  the  service  is  constructive,  in  ease  no  personal 
judgment  is  sought,  the  petition  need  contain  only  one  cause 
of  action.  In  such  case  the  prayer  is  that  the  court  may 
find  the  amount  due  plaintiff,  that  the  mortgage  be  foreclosed 
and  the  real  estate  therein  described  sold  to  satisfy  the 
amount  so  found  due.  Everyone  claiming  an  adverse  interest 
in  the  real  estate  should  be  made  a  party,  with  allegations 
in  respect  thereof,  as  in  the  foreclosure  of  other  liens. 

For  a  full  discussion  of  the  procedure  as  to  parties,  ref- 
erence is  had  to  the  first  chapter  of  this  book.  There  will 
be  found  the  law  and  procedure  connected  with  the  issuance 
and  service  of  summons  in  the  action,  how  defendants  may 
voluntarily  enter  their  appearance,  how  service  of  summons 
is  made  on  residents  of  the  county  and  nonresident  of  the 


2  Giddings    v.    Barney,    31    O,    S.  3  i      Kinkead's      Code     Pleading, 

(Ohio),   804.  Sec.  GG. 


757  PROCEDURE   TO   FORECLOSE    MORTGAGE.       §§  1055,  1056 

county  who  are  residents  of  the  State,  how  service  is  had  on 
nonresidents  of  the  State  by  publication,  and  by  copy  of  the 
petition,  how  infants  are  served  with  summous  and  are 
defended  by  guardian  ad  litem,  appointed  by  the  court,  and 
the  conduct  of  such  defense,  how  insane  persons  are  defended 
by  trustees  appointed  by  the  court,  and  how  all  the  steps 
must  be  taken  to  give  the  court  power  to  hear  and  determine 
the  rights  of  the  parties  to  the  action. 

In  the  chapter  herein  on  sale  of  real  estate  under  an  execu- 
tion, there  will  be  found  a  full  statement  of  the  sale  of  real 
estate  by  an  order  of  sale  and  under  the  writ  venditioni 
exponas,  and  also  the  law  as  to  appraisement  and  also  all  of  the 
procedure  from  the  time  of  the  order  of  sale  to  the  delivery 
of  the  deed  to  the  purchaser. 

Sec.  1055.    Procedure — Necessary  parties  to  the  action. 

In  a  suit  to  foreclose  a  mortgage  the  heir  of  an  intestate 
is  not  a  necessary  party  and  is  concluded  by  a  decree  of 
sale  against  the  administrator.*  One  having  a  lien  on  the 
real  estate  sought  to  be  foreclosed  and  is  not  made  a  party, 
may  be  made  a  party,  or  may,  by  cross-petition,  ask  to  have 
his  lien  foreclosed.^ 

Sec.  1056.     The  rights  of  purchaser  of  real  estate  during  fore- 
closure of  the  mortgage. 

In  cases  of  real  estate  covered  by  mortgage,  during  its 
foreclosure  the  action  may  continue  in  the  name  of  the  orig- 
inal party,  or  the  court  may  allow  the  person  to  whom  the 
transfer  is  made  to  be  substituted  in  the  action.® 


4  McClung   V.    Cullison,    15    Okla.  is    not  necessarily   a   party.      Jones 

402,  82  Pac.  494.  v.  Lapham,  15  Kan.  540. 

sBlanshard   v.  Schwartz,   7   Okla.  6  Gilett   v.    Romig,    17   Okla.   324, 

23,    54   Pac.    303.      When    the  mort-  87  Pa.  325. 
gagox  has  conveyed  his  interest  he 


§  1057  merwine's  trial  of  title  to  land.  758 

Sec.  1057.  The  law  and  procedure  in  foreclosure  of  a  mort- 
gage when  one,  not  a  party  to  the  action, 
assumes  it  and  agrees  to  pay  it. 

The  law  is  that  one  who,  in  the  deed  conveying  the  real 
estate  to  him,  assumes  a  real  estate  mortgage,  and  agrees 
to  pay  it,  becomes  the  principal  debtor  and  his  grantor  be- 
comes surety,  and  the  rule  is  that  where  successive  grantees 
assume  the  mortgage  debt,  the  last  grantee  assuming  the 
debt  is  the  principal  debtor,  and  each  successive  grantee 
is  a  surety.  It  is  a  rule  of  law  that  where  the  purchaser 
of  real  estate  takes  it  encumbered  wath  a  mortgage,  and  an 
abatement  is  made  in  the  consideration  on  account  of  the 
mortgage,  the  law  will  imply  a  promise  on  the  part  of  the 
purchaser  to  pay  the  mortgage  debt.^  The  agreement  may  be 
enforced  by  the  last  purchaser  against  each  previous  one, 
whatever  agreement  he  may  have  to  and  with  the  latter.  The 
law  will  imply  an  agreement.^  And  the  agreement,  though 
made  orally,  can  be  enforced.^  Where  the  action  is  against 
several  grantees  who  have  assumed  the  mortgage  and  agreed 
to  pay  it,  there  is  but  one  cause  of  action,  and  all  of  them  may 
be  set  forth  in  one  petition  without  being  separately  stated 
and  numbered.^" 

It  has  been  held  further  that  a  deed  which  in  terms  pro- 
vides that  the  grantee  is  to  assume  a  certain  incumbrance 
on  the  premises,  makes  a  contract  in  writing  by  said  grantee 
to  pay  the  incumbrance,  upon  which  contract  the  holder  of 
the  incumbrance  may  proceed  directly  against  the  grantee 
to  recover.^^ 


7  Thompson  v.  Thompson,  4  0.  S.  1,047;  Thompson  v.  Chessman,  48 
(Ohio),  333.  Pac.   477;    Stanton  v.  Kendrick,  45 

8  Emmet  v.  Brophy,  42  0.  S.  82.  N.  E.  19. 

9  Society  v.  Haines,  47  0.  S.  424.  lo  Pomeroy's  Code  Eemedirs,  Sec. 
As  to  agreements  to  assume  mort-  459;  1  Kinkead's  Code  Pleading, 
gages,  see  Brewer  v.  Maurer,  38  0.  S.  Sec.  584. 

543;    Poe   V.   Dixon,   06   0.    S.    124;  n  Schumaker   v.   Sibert,    18    Kan. 

Barker   v.    Camp,   71    Am.   St.    Rep.  104. 
186;    Ordway    v.    Downer,    51    Pac. 


759  PROCEDURE   TO    FORECLOSE    MORTGAGE.       §§  1058,  1059 

Sec.  1058.     The  indorsement  on  the  summons  in  the  action 
to  foreclose  a  mortgage. 

The  statute  of  this  State  which  provides  that  the  summons 
shall  be  "directed  to  the  sheriff  of  the  county  and  command 
him  to  notify  the  defendant  or  defendants,  named  therein, 
that  he  or  they  have  been  sued,  and  must  answer  the  petition 
filed  by  the  plaintiff,  giving  his  name,  at  a  time  stated  therein, 
or  the  petition  will  be  taken  as  true  and  judgment  rendered 
accordingly ;  and  where  the  action  is  on  contract  for  the 
recovery  of  money  only,  there  shall  be  indorsed  on  the  writ 
the  amount,  to  be  furnished  in  the  praecipe,  for  which,  with 
interest,  judgment  will  be  taken,  if  the  defendant  fail  to 
answer.  If  the  defendant  fail  to  appear,  judgment  shall  not 
be  rendered  for  a  larger  amount  and  the  costs," — does  not 
require  the  summons  in  a  foreclosure  suit,  where  personal 
service  has  been  had,  to  advise  the  defendant  of  the  nature 
of  the  action  against  him,  and  the  kind  of  judgment  that 
will  be  rendered,  nor  is  it  necessary,  the  action  not  being  for 
the  recovery  of  money  only,  to  indorse  on  the  writ  the 
amount  for  which,  with  interest,  judgment  will  be  taken  if 
the  defendant  fail  to  answer.^- 

Sec.  1059.    The  affidavit  for  service  by  publication. 

In  an  action  to  foreclose  a  mortgage  on  real  estate,  service 
may  be  made  upon  a  defendant  not  residing  within  the  State, 
by  publication,  but  this  does  not  waive  the  statutory  affidavit 
to  be  filed  in  the  action,  showing  the  defendant  to  be  served, 
a  nonresident  of  the  State.  This  filing  of  the  affidavit  is 
jurisdictional,  and,  unless  it  be  filed  in  accordance  with  the 
terms  of  the  statute,  all  subsequent  proceedings  of  the  court 
relative  thereto  are  void.^'  And  this  fatal  defect  cannot  be 
cured  by  amendment.^* 


12  Horton  v.  Haines,  23  Okla.  878,  i*  Hammerslough    v.    Hackett,    30 
102  Pac.  121.                                                 Kan.  51,   1   Pac.  41. 

13  Shields  v.  Miller,  9  Kan.  390. 


§  1060  merwine'3  trial  of  title  to  land.  760 

Sec.    1060.    Personal    judgment    in    foreclosure — May    order 
payment    of    costs    and    attorney    fees    in    the 
action — Duty  of  sheriff  when  tracts  lie  in  dif- 
ferent counties — No  pledge  of  real  estate  can 
be  foreclosed  except  by  order  of  court. 
In  an  action  to  enforce  a  mortgage,  a  deed  of  trust,  or  other 
lien   or  charge,   a   personal  judgment   or  judgments   shall   be 
rendered   for   the   amount   or   amounts    due,    as   well    to   the 
plaintiff  as  to  other  parties  to  the  action  having  liens  on  the 
mortgaged  premises  by  mortgage  or  otherwise,  with  interest 
thereon,  and  for  sale  of  the  property  charged  and  the  appli- 
cation of  the  proceeds,  or  such  application  may  be  reserved 
for  the  further  order  of  the  court,  and  the  court  is  required 
to   tax   the   costs,   attorney's   fees   and   expenses   which   may 
accrue    in    the    action,    and    apportion    the    same    among   the 
parties    according    to    their    respective    interests,    to    be    col- 
lected on  the  order  of  sale  or  sales  issued  thereon,  and  when 
the  same  mortgage  embraces  separate  tracts  of  land  situated 
in   two   or  more   counties,   the   sheriff   of   each   county   must 
make  sale  of  the  lands  situated  in  the  county  of  which  he  is 
sheriff.     No  real  estate  will  be  permitted  to  be  sold  for  the 
payment  of  any  money  or  the  performance  of  any  contract, 
or  agreement  in  writing,  in  security  for  which  it  may  have 
been  pledged  or  assigned,  except  in  pursuance  of  a  judgment 
of  a  court  of  competent  jurisdiction  ordering  such  sale.^^ 


15  Snyder,    5,921;    Wilson,    4,588;  until    after    foreclosure.      Gillett    v. 

Kansas,  4,848   (1901) ,  identical.    As  Romig,    17    Okla.   314,   87   Pac.   325. 

to    sales    of    mortgaged    parcels    of  Finding    not    a    judgment.      Blumm 

real   estate  disconnected,   see   Miller  v.    Kramer,    14    Okla.    366,    79    Pac. 

V.  Trudgeon,   16   Okla.  337,   86  Pac.  1,134.     Rights  of  junior  m'ortmagee, 

523.     Fraud  as  a  defense  to  a  fore-  see    Horr    v.    Herrington,    22    Okla. 

closure   suit   may  be   shown   at  any  590,    98    Pac.    443.      Such    personal 

time.    Alton  v.  Staten,  19  Okla.  252,  judgment     lien     on     all     lands     in 

91    Pac.   892;    Balduff  v.   Groswold,  county.      Lisle    v.    Cheney,    13    Pac. 

9  Okla.  438,   60   Pac.   223.     In  this  815. 
state   no  title   passes   by   mortgage 


761  PROCEDURE   TO    FORECLOSE    MORTGAGE.        §§  1061-1064 

Sec.  1061.     Procedure  after  sale  in  foreclosure  of  mortgage. 

After  a  decree  in  foreclosure  the  execution  for  the  sale 
must  conform  to  the  order  of  the  court ;  ^"  and  the  sale 
cannot  be  confirmed  before  the  purchase  price  is  paid  to  the 
sheriff.  ^^ 

The  order  of  the  court  in  setting  aside  the  confirmation 
of  a  sale  in  a  foreclosure  sale,  was  correctly  made,  where  the 
order  of  sale  was  issued  by  the  clerk  of  the  court,  and  the 
sale  was  made  within  six  months  from  the  date  of  the  judg- 
ment without  appraisement.^^ 

Sec.  1062.    Who  may  mortgage  real  estate. 

Male  persons  of  the  age  of  twenty-one  years,  female  per- 
sons of  the  age  of  eighteen  years,  being  otherwise  qualified 
thereto,  and  corporations  to  the  extent  and  in  the  manner 
authorized  by  law,  owning  real  estate  in  the  State  of  Okla- 
homa, may  mortgage  any  interest  therein.  Provided,  any 
persons  of  whatsoever  age,  who  have  been  legally  married, 
and  who  are  otherwise  qualified,  may  dispose  of  and  make 
contracts  relative  to  real  estate  acquired  after  marriage.^" 

Sec.  1063.     No  witnesses  necessary  to  execution  of  real  estate 
mortgage. 
No  subscribing  witness  is  necessary  to  the  validity  of  any 
mortgage  affecting  or  relating  to  real  estate.-" 

Sec.  1064.     Essential  requisites  for  the  validity  of  a  mortgage. 

No  mortgage  relating  to  real  estate  will  be  valid  until 
reduced  to  writing  and  subscribed  by  the  mortgagors ;  and 
no  mortgage,  relating  to  the  homestead  exempt  by  law  will 


16  Price  V.  Citizens,  23  Okla.  723,  is  Hancock    v.    Yoiiree,    25    Okla. 
102  Pac.   800.                                                   460,   106  Pac.  S41. 

17  Price  V.  Citizens,  23  Okla.  723,  is  Snyder,     1,184;     act     approved 
102  Pac.  800.                                                 March  5,  1905. 

20  Snyder,   1,185;    Wilson,  878. 


§§1065,1066       merwine's  trial  op  title  to  land.  762 

be  valid  unless  in  writing  and  subscribed  by  both  husband 
and  wife,  where  both  are  living  and  not  divorced,  except  to 
the  extent  hereinafter  provided.-^ 

In  an  action  to  foreclose  a  mortgage  not  signed  by  the 
wife  on  the  homestead,  the  husband  having  left  it  not  in- 
tending to  return,  and  the  wife  having  intended  to  return, 
and  the  land  in  the  meantime  having  been  rented  for  a  year, 
it  was  held  that  the  mortgage  at  its  inception  was  void."  A 
mortgage  was  jointly  executed  by  husband  and  wife  on  the 
homestead  securing  the  note  of  the  husband  alone,  the  mort- 
gage, however,  recited  the  note  to  be  the  debt  of  the  wife, 
held,  that  the  court  has  power  to  correct  such  mortgage  and 
decree  foreclosure  on  the  homestead.^^ 

Sec.  1065.  When  husband  or  wife  may  mortgage  homestead. 
Where  the  title  to  the  homestead  is  in  the  husband  and 
the  wife  voluntarily  abandons  him  for  a  period  of  one  year, 
or  from  any  cause  takes  up  her  residence  out  of  the  State,  he 
may  mortgage  it  without  being  joined  therein  by  her;  and 
where  the  title  to  the  homestead  is  in  the  wife,  and  the 
husband  voluntarily  abandons  her,  or  from  any  cause  takes 
up  his  residence  out  of  the  State  for  a  period  of  one  year,  she 
may  mortgage  said  homestead  without  being  joined  therein 
by  him.-* 

Sec.  1066.     When  husband  or  wife  concluded  by  mortgage  of 
homestead. 

If  the  husband  make  any  mortgage  relating  to  the  home- 
stead without  being  joined  therein  by  his  wife,  he  will  be 
concluded  thereby,  and  the  same  can  only  be  avoided  by  the 
wife ;  and  if  the  wife  make  any  mortgage  relating  to  the 
homestead  without  being  joined  therein  by  the  husband,  she 
will  be  concluded  thereby,  and  the  same  can  only  be  avoided 
by  the  husband;  and  in  either  case  the  husband  or  wife 
entitled  to  avoid  any  such  mortgage  will  be  concluded  by  a 

21  Snyder,   1,187;    Wilson,  880.  23  Bastin  v.  Schafer,  15  01:1a.  607, 

22  Hall    V.    Powell,    8    Okla.    276,       85   Pac.   349. 

57  Pac.  168.  24  Snyder^.  1,189;   Wilson,  882. 


763  PROCEDURE   TO   FORECLOSE    MORTGAGE.        §§  1067-1069 

failure  after  due  notice  of  suit  in  any  court  of  competent 
jurisdiction,  to  set  forth  his  or  her  right,  title  or  interest 
therein.-^ 

Sec.  1067.  Who  estopped  from  denying  validity  of  mortgage. 
Any  person  or  corporation  having  knowingly  received  and 
accepted  the  benefits  or  any  part  thereof  of  any  mortgage 
relating  to  real  estate,  shall  be  concluded  thereby  and  estopped 
to  deny  the  validity  of  said  mortgage,  or  the  power  or  author- 
ity to  make  and  execute  the  same,  except  on  the  ground  of 
fraud ;  but  this  paragraph  will  not  apply  to  minors  or  persons 
of  unsound  mind  who  pay  or  tender  back  the  amount  of  such 
benefit  received  by  themselves.^'^ 

Sec.  1068.     Husband  or  wife  may  mortgage  real  estate  not  the 
homestead,  when. 
The  husband  or  wife  may  mortgage  any  real  estate  other 
than  the  homestead  belonging  to  him  or  her,  as  the  case  may 
be,  without  being  joined  by  the  other  in  said  mortgage.-'^ 

Sec.  1069.  Mortgage  not  acknowledged  or  recorded  valid  as 
to  the  parties  thereto — Must  be  acknowledged 
and  recorded  to  be  valid  as  to  other  parties. 

Except  as  hereinafter  provided  herein  no  acknowledgment 
or  recording  are  necessary  to  the  validity  of  any  mortgage  on 
real  estate  as  between  the  parties  thereto;  but  no  mortgage 
relating  to  real  estate  will  be  valid  as  against  third  persons 
unless  acknowledged  and  recorded  as  herein  provided,  except 
actual  notice  to  such  third  persons  shall  be  equivalent  to  due 
acknowledgment  and  recording.-^ 

25  Snyder,   1,190;   Wilson,  883.  the  execution   thereof   to  be  

28  Snyder,   1,191;   \A'ilson,   884.  free  and  voluntary  act  and  deed  for 

27  Snyder,   1,193;  Wilson,   8S6.  the  purposes  therein  named."    Held, 

28  Snyaer,  1,195;  Wilson,  888;  that  the  omission  of  the  word 
Hess  V.  Trigg,  8  Okla.  286,  51  Pac.  "their"  does  not  make  the  acknowl- 
159.  An  acknowledgment  to  a  edgment  void.  Garton  v.  Hudson, 
mortgage    sued    on    provided     that  8  Okla.  631,  58  Pac.  946. 

"each   for   themselves   acknowledged 


§  §  1070-1 074  MERWINE  'S   TRIAL   OF   TITLE   TO   LAND.  764 

Sec.  1070.    Mortgages,  how  acknowledged. 

Mortgages  of  real  property  are  acknowledged  or  proved,  cer- 
tified and  recorded  in  like  manner  and  with  like  effect  as  grants 
thereof.-^ 

Sec.  1071.     Recording  mortgage  notice  to  whom. 

The  record  of  a  mortgage,  duly  made,  operates  as  notice 
to  all  subsequent  purchasers  and  incumbrancers.^" 

Sec.  1072.     All  papers  explanatory  of  grant  or  mortgage  to 
be  recorded. 

Every  grant  of  real  property,  or  of  any  estate  therein, 
vrhich  appears  by  any  other  writing  to  be  intended  as  a 
mortgage  within  the  meaning  of  this  chapter,  must  be  re- 
corded as  a  mortgage;  and  if  said  grant  and  other  writing 
explanatory  of  its  true  character  are  not  recorded  together 
at  the  same  time  and  place,  the  grantee  can  derive  no  benefit 
from  said  record.^^ 

Sec.  1073.     Defeasance  clause  must  be  recorded. 

When  a  grant  of  real  property  purports  to  be  an  absolute 
conveyance,  but  is  intended  to  be  defeasible  on  the  perform- 
ance of  certain  conditions,  said  grant  is  not  defeated  or 
affected  as  against  any  person  other  than  the  grantee  or  his 
heirs  or  devisees  or  persons  having  actual  notice,  unless  an 
instrument  of  defeasance  duly  executed  and  acknowledged, 
is  recorded  in  the  office  of  the  register  of  deeds  of  the  county 
where  the  property  is  situated.^^ 

Sec.  1074.    Deed  deemed  mortgage,  when. 

Every  instrument  purporting  to  be  an  absolute  or  quali- 
fied conveyance  of  real  estate,  or  any  interest  therein,  but 
intended  to  be  defeasible  or  as  security  for  the  payment  of 

29  Snyder,  4,411;  Wilson,  3,567;  3i  Snyder,  4.413;  Wilson,  3,569; 
Dakota   Code,   4,368  (1887).                     Dakota   Code,   4.371  (1887). 

30  Snyder,  4,412;  Wilson,  3,568;  32  Snyder,  4,414;  Wilson,  3,569; 
Dakota   Code,   4,368  (1887).                    Dakota   Code,   4,371  (1887). 


765  PROCEDURE    TO    FORECLOSE    MORTGAGE.  §  1075 

money,  will  be  deemed  a  mortgage  and  must  be  recorded  and 
foreclosed  as  such.^' 

The  instrument,  no  matter  what  form,  when  given  as 
security  for  debt,  will  be  deemed  a  mortgage  and  must  be 
foreclosed  as  such.^* 

Sec.  1075.      Parol    evidence    admissible    to    show    nature    of 
transaction. 

The  agreement  by  which  a  deed  absolute  on  its  face  is 
intended  as  security  for  debt,  may  be  proved  by  verbal  or 
other  testimony."^ 

As  to  the  principles  of  law  in  such  cases,  it  has  been  well 
said: 

"It  is  well  established  that  a  deed  absolute  on  its  face  can 
be  shown  by  parol  or  other  extrinsic  evidence  to  have  been 
intended  as  a  mortgage,  and  that  the  relation  of  mortgagor 
and  mortgagee  being  thus  established  all  the  rights  and 
obligations  incident  to  that  relation  attach  to  the  parties. 
The  fact  once  established,  either  by  the  terms  or  the  other 
evidence  that  the  grant  was  intended  as  a  mortgage,  the 
rights  of  the  parties  are  to  be  measured  by  the  rules  of  law 
applicable  to  mortgagors  and  mortgagees,  and  the  convey- 
ance remains  but  a  mortgage  until  the  equity  of  redemption 
is  foreclosed;  and  the  mortgagee  cannot  have  ejectment 
against  the  mortgagor  or  those  claiming  under  him,  until 
after  foreclosure.  It  is  not  material  that  the  conveyance 
should    be    made    by    the    debtor    or    by    him    in    whom    the 


33  Snyder,  1,196;  Wilson,  889;  the  estate  nnconditionally  in  the 
Balduff  V.  Griswold,  9  Okla.  438,  60  grantee  without  foreclosure  or  other 
Pac.  223;  Wagg  V.  Herbert,  19  Okla.  conveyance.  Seawell  v.  Hendricks, 
520,  92  Pac.  250;   Yingling  v.  Red-  4  Okla.  435,  46  Pac.  557. 

wine,    12    Okla.    64,    69    Pac.    810;  33  Balduff    v.    Griswold,    9    Okla. 

Weisham  v.  Hocker,  7  Okla.  250,  54  438,  60  Pac.  223;  Stith  v.  Peckham, 

Pac.  464.  4  Okla.  254,  46  Pac.  664;  Weisham 

34  Yingling  v.  Redwine,  12  Okla.  v.  Hocker,  7  Okla.  250,  54  Pac.  464; 
64,  69  Pac.  810.  But  may  be  sur-  Wagg  v.  Herbert,  19  Okla.  520,  92 
rendered  and  canceled  so  as  to  vest  Pac.  250. 


§§  1076,1077       merwine's  triai.  of  title  to  land.  766 

equity  of  redemption  will  exist.  It  is  sufficient  if  the  debtor 
and  he  who  claims  to  occupy  the  position  of  mortgagor  with 
the  right  of  redemption  has  an  interest,  legal  or  equitable, 
in  the  premises,  and  the  grantee  of  legal  title  has  acquired 
such  title  by  the  act  and  assent  of  the  debtor,  and  as  security 
for  his  debt. ' '  ^^ 


Sec.  1076.  Separate  instrument  with  defeasance  to  be  deemed 
parts  of  each  other. 
Every  instrument  explanatory  of  any  deed  or  other  writing 
purporting  to  be  a  conveyance,  but  intended  to  be  defeasible 
or  as  security  for  the  payment  of  money,  will  be  deemed  a 
part  thereof,  and  the  same  is  required  to  be  filed  and  recorded 
therewith;  and  unless  such  instruments  are  so  filed  and 
recorded  together  they  and  each  of  them  will  have  no  other 
effect  than  an  unrecorded  mortgage,  and  the  recording  of 
the  principal  instrument  will  secure  no  rights  to  the  holder 
thereof.^^ 

Sec.  1077.    Innocent  purchasers  protected. 

Any  person  purchasing  or  taking  any  security  against  real 
estate  in  good  faith  and  without  notice  from  one  holding 
under  an  instrument  purporting  to  be  a  conveyance,  but  in- 
tended as  security  for  the  payment  of  money,  and  which 
instrument  has  been  duly  recorded  without  any  other  instru- 
ment explanatory  thereof,  will  be  protected  to  the  extent  of 
the  purchase  price  paid  or  actual  outlay  occasioned,  with 
lawful  interest,  against  all  persons  except  those  in  actual 
possession  at  the  time  of  such  purchase  or  outlay.^* 


38Balduflr    V.    Griswold,    9    Okla.  Kan.    55,     1    Pac.    825;     Moore    v. 

438,  60  Pac.  223;   Cann  v.  Cann,  52  Wade,  8   Kan.  380. 

N.  W.  251;   Hassam  v.  Barrell,  115  37  gnyder,  1,197;   Wilson,  890. 

Mass.    256;     Franum    v.    Gross,    42  38  Snyder,   1,198;   Wilson,  891. 
Cal.    169;    Overstreet  v.  Baxter,   30 


767  PROCEDURE   TO   FORECLOSE    MORTGAGE.        §§  1078-1081 

Sec.  1078.     Such  instrument  deemed  an  assignment. 

Any  conveyance  other  than  as  above  provided,  by  one 
holding  under  an  instrument  purporting  to  be  a  conveyance, 
but  intended  as  security,  will  be  deemed  and  treated  as  an 
assignment  and  transfer  of  the  mortgage  rights  of  an  in- 
debtedness due  the  maker  thereof.* 

Sec.  1079.     Benefits  of  mortgage  accrue  to  mortgagee. 

All  rights  of  a  mortgagor  or  grantor  in  and  to  the  prem- 
ises described  in  the  instrument  and  existing  at  the  time  or 
subsequently  accruing,  will  be  deemed  to  accrue  to  the 
benefit  of  the  mortgagee  or  grantee,  and  be  covered  by  his 
mortgage  or  conveyed  by  his  deed,  as  the  case  may  be.^^ 

Sec.  1080.    Mortgage  follows  property,  when. 

When  real  property,  subject  to  a  mortgage,  passes  by  suc- 
cession or  will,  the  successor  or  devisee  must  satisfy  the 
mortgage  out  of  his  own  property  without  resorting  to  the 
executor  or  administrator  of  the  mortgagor,  unless  there  is 
an  express  direction  in  the  will  of  the  mortgagor  that  the 
mortgage  must  be  otherwise  paid.'*" 

Sec.  1081.    No  mortgage  received  for  record  until  acknowl- 
edged. 

No  mortgage  affecting  real  estate  will  be  received  for 
record  or  recorded  unless  executed  and  acknowledged  in  sub- 
stantial compliance  with  the  provisions  of  this  act;  and 
the  recording  of  any  such  instrument  not  so  executed  and 
acknowledged  will  not  be  effective  for  any  purpose.'*^  A  duly 
recorded  mortgage  constitutes  notice  though  acknowledged 
hefore  the  cashier  of  a  bank  of  which  the  mortgagor  is 
president.*^ 

•Snyder,  1,199:   Wilson,  892.  *i  Snyder,   1,208;    Wilson,  901. 

39  Snyder,   1,200;   Wilson,  893.  42  Key  v.  Ewing,  87  Pac.  297. 

40  Snyder,    4,410;    Wilson,    3,566; 
Dakota  Code,  4,367   (1887). 


§§  1082-1084     merwine's  trial  op  title  to  land.  768 

No  mortgage  will  be  received  for  record  or  recorded 
unless  plainly  written  or  printed,  or  partly  written  and  partly 
printed  in  the  English  language.^^ 

Sec.  1082.     Duty  of  register  of  deeds  when  mortgage  is  pre- 
sented for  record. 

The  register  of  deeds  is  required,  whenever  an  instrument 
is  presented  to  him  for  record,  to  immediately  note  on  the 
instrument  the  year,  the  month,  day,  hour  and  minute  of 
receiving  the  same,  and  the  date  of  the  record  of  such  in- 
strument will  be  from  the  date  of  the  filing;  he  is  required  to 
then  enter  the  same  upon  the  receiving  book,  making  all  the 
entries  in  the  appropriate  columns  as  provided  by  statute, 
and  as  soon  thereafter  as  practicable,  record  said  instrument 
in  the  proper  record,  enter  it  upon  the  proper  indexes,  and 
over  his  signature  and  seal  note  the  book  and  page  on  wliich 
said  instrument  is  recorded.** 

Sec.  1083.    Mistake  of  register  of  deeds  does  not  lose  priority 
for  the  instrument. 

Under  the  terms  of  the  statute  in  the  preceding  paragraph, 
defining  the  duties  of  the  recording  officer,  whenever  an 
instrument  is  presented  for  record,  any  mistake  or  neglect 
of  his  in  recording  the  instrument  does  not  affect  the  mort- 
gagee; for  if  the  law  w^ere  otherwise  the  mortgagee  would 
be  required  to  exercise  supervisory  control  over  such  officer.*^ 

Sec.  1084.     Mortgage  void  for  want  of  consideration,  when. 

Every  conveyance  of  real  estate  or  any  interest  therein,  and 
every  mortgage  or  other  instrument  in  any  way  affecting  the 
same,  made  without  a  fair  and  valuable  consideration,  o*i* 
made  in  bad  faith,  or  for  the  purpose  of  hindering,  delaying 

43  Snyder,   1,210;   Wilson,  903.  45  Covington   v.    Fisher,    22    Okla. 

44  Snyder,  1,740;   Wilson,  1,284.  207,  97  Pac.  615;    Poplin   v.  Wendell, 

27   Kan.    138;    Castrelero  x.   United 
States,   2   Black,    17-97,   3G0. 


769  PROCEDURE    TO    FORECLOSE    MORTGAGE.       §§1085,1086 

or  defrauding  creditors,  will  be  void  as  against  all  persons 
to  whom  the  maker  is  at  the  time  indebted  or  under  any 
legal  liability.*'^ 


Sec.  1085.  Assignment  of  non-negotiable  note  secured  by 
mortgage,  effective  of. 
Where  the  makers  of  a  non-negotiable  note  have  neither 
actual  nor  constructive  notice  of  the  assignment  of  the  note 
and  coupons,  or  the  mortgage  securing  the  same,  proof  or  the 
payment  of  the  note  and  coupons  to  the  payee  in  accordance 
with  the  terms  and  tenor  of  the  note  and  mortgage,  is  a  com- 
plete defense  to  an  action  upon  the  same.*^ 

Sec.  1086.     Statutory  form  for  mortgage. 

A  mortgage  upon  real  estate  may  be  substantially  in  the 
following  form,  to-wit : 

Know  All  Men  by  These  Presents,  that and 

of  County,  in  the  of  ,  part—  of  the  first 

part,  have  mortgaged  and  hereby  mortgage  to ,  of 

County, of ,  part —  of  the  second  part,  the  follow- 
ing   described    real    estate    and    premises,    situated    in 


County,  State  of  Oklahoma,  to-wit:  ,  with  all  improve- 
ments thereon  and  appurtenances  thereunto  belonging,  and 
warrant  the  title  to  the  same. 

This  mortgage  is  given  to  secure  the  principal  sum  of  $ 

with  interest  thereon  at  the  rate  of per  cent,  per  annum, 

payable  annually  from  according  to  the  terms 

of certain  promissory  note —  described  as  follows,  to-wit : 


Dated  this day  of ,  19—. 


46  Snyder,     1,213;     Wilson,     906;       v.    Higgins,    15    Okla.    588,    82    Pac. 
Alton   V.    Staten,    19    Okla.   252,    91       649. 

Pac.  892.  48  Snyder,   1,224;    Wilson,  916. 

47  Randall     v.     Glendenning,      19 
Okla.   475,   92   Pac.    160;    Dickerson 


§§1087-1089       merwine's  trial  of  title  to  land.  770 

Sec.  1087.     Another  statutory  form  for  mortgage. 

A  mortgage  of  real  property  may  be  made  in  substantially 
the  following  form : 

This  mortgage,  made  the  day  of  ,  in  the  year 

,  by  ,  mortgagor,  to  of  ,  mortgagee, 

"WITNESSETH  ; 

That  the  mortgagor  mortgages  to  the  mortgagee  (Here  de- 
scribe  the  property)    as   security  for  the  payment  to  him   of 

• dollars,  on  or  before  the  day  of  ,  in  the 

year ,  with  interest  thereon  (or  as  security  for  the  pay- 
ment of  an  obligation,  describing  it,  etc.).*'' 


Sec.  1088.    What  is  a  good  and  valid  mortgage — Waiver  of 
appraisement. 

Every  instrument  substantially  the  same  as  above  in  Sec- 
tion 1086  will  be  deemed  a  good  and  valid  mortgage,  with  all 
contracts  and  covenants  essential  to  protect  the  rights  of  the 
holder  thereof;  but  any  other  lawful  contract  embodied  therein 
will  be  binding  upon  the  parties  thereto;  and  when  the  words, 
"Waive  appraisement,"  are  written  or  printed  therein,  the 
premises  mortgaged  must  be  sold  without  appraisement,  in 
case  of  foreclosure  and  sale  thereunder,  and  in  such  case 
no  order  for  such  sale  will  be  allowed  to  issue  until  six 
months  after  the  date  of  judgment.^** 

Sec.  1089.    The  manner  of  the  discharge  of  a  mortgage. 

A  recorded  mortgage  may  be  discharged  by  entry  in  the 
margin  of  the  record  thereof,  signed  by  the  mortgagee  or  his 
personal  representative  or  assignee,  acknowledging  the  satis- 
faction of  the  mortgage,  in  the  presence  of  the  register,  who 
must   certify   the   acknowledgment   in   form   substantially   as 


49  Snyder,    4,409;    Wilson,    3,565;  bo  Snyder,   1,225;    Wilson,  917. 

Dakota  Code,   4,366    (1887). 


771  PBOCEDURE   TO   FORECLOSE    MORTGAGE.        §§  1090-1092 

follows :   ' '  Signed   and   acknowledged   before   me   this   

day  of ,  in  the  year .     A.  B.,  Register."  ^^ 


Sec.  1090.    Discharge  noted  by  recording  oflacer,  when. 

A  recorded  mortgage,  if  not  discharged  as  provided  in  the 
preceding  paragraph,  must  be  discharged  upon  the  record  by 
the  officer  having  custody  thereof,  on  the  presentation  to 
him  of  a  certificate  signed  by  the  mortgagee,  his  personal 
representatives  or  assigns,  acknowledged  or  proved  and  cer- 
tified as  is  required  for  transfers,  stating  that  the  mortgage 
has  been  paid  or  otherwise  satisfied  and  discharged.^^ 

Sec.  1091.     Certificate  of  discharge  recorded,  how. 

A  certificate  of  discharge  of  a  mortgage  and  proof  of 
the  acknowledgment  thereof,  must  be  recorded  at  length, 
and  a  reference  made  in  the  record  to  the  book  and  page 
where  the  mortgage  is  recorded,  and  in  the  minute  of  the 
discharge  made  upon  the  record  of  the  mortgage,  to  the  book 
and  page  where  the  discharge  is  recorded.^^ 

Sec.  1092.  Mortgagee  to  make  certificate  of  discharge,  when. 
When  any  mortgage  has  been  satisfied,  the  mortgagee  or 
his  assignee  must,  immediately  on  demand  of  the  mortgagor, 
execute  and  deliver  to  him  a  certificate  of  the  discharge 
thereof,  and  must  at  the  expense  of  the  mortgagor  acknowl- 
edge the  execution  thereof  so  as  to  entitle  it  to  be  recorded, 
or  he  must  enter  satisfaction  or  cause  satisfaction  of  such 
mortgage  to  be  entered  of  record ;  and  any  mortgagee  or 
assignee  of  such  mortgagee  who  refuse  to  execute  and  deliver 


51  Snyder,    4,405;    Wilson,    3,561;  52  Snyder,    4,406;    Wilson,    3,562; 

Dakota    Code,    4,362    (1887);    Cali-       Dakota    Code,   4,363    (1887). 
fornia,    2,938 ;     Kerr's    Code,    iden-  53  Snyder,  4,407 ;  Wilson,  3,653. 

tical;   Beal  v.  Stevens,  72  Cal.  451, 
14  Pac.  186. 


§  1093  merwine's  trial  of  title  to  land.  772 

to  the  mortgagor  a  certificate  of  discharge  and  to  acknowledge 
the  execution  thereof,  or  to  enter  satisfaction  or  cause  satis- 
faction to  be  entered  of  the  mortgage  as  provided  in  this 
chapter,  is  liable  to  the  mortgagor  or  'his  grantee  or  heirs, 
for  all  damages  which  he  or  they  may  sustain  by  reason  of 
such  refusal,  and  wall  also  forfeit  to  him  or  them  the  sum  of 
one  hundred  dollars.^* 


Sec.  1093.     Note  and  the  mortgage  construed  together. 

Where  there  are  a  series  of  notes,  secured  by  one  mort- 
gage, and  the  notes  contain  no  provision  as  to  a  foreclosure 
in  case  default  is  made  either  in  the  payment  of  any  one  note 
or  the  interest  thereof,  and  the  mortgage  contains  a  stipula- 
tion that  if  there  is  a  default  in  the  payment  of  the  interest, 
or  of  any  note  when  due,  the  stipulation  in  the  mortgage  will 
control.  The  same  rule  holds  where  the  mortgage  contains 
a  stipulation  that  in  default  of  the  payment  of  interest,  any 
one  of  a  series  of  notes,  when  due,  the  nonpayment  of  taxes 
or  assessments  or  in  case  of  insurance. 

Indeed,  it  has  been  held  that  a  note  and  mortgage  se- 
curing the  same,  when  executed  contemporaneously,  are  to  be 
construed  as  constituting  one  contract,  and  the  stipulations 
of  the  mortgage  with  reference  to  the  maturity  of  the  debt, 
because  of  a  failure  to  pay  interest,  when  due,  will  be  given 
effect  so  as  to  cause  the  same  to  become  due  and  payable 
before  the  time  expressed  on  its  face.^^ 


54  Snyder,    4,408;    Wilson,    3,564;  ss  Eveans  v.   Baker,  5  Kan.  App. 

Dakota    Code,    4,365     (1887).      The  68,   47   Pac.   314;    Stanclift  v.  Nor- 

statute    is    to   be    strictly    complied  ton,   11  Kan.  218;  Elwood  v.  Wool- 

with.     Peckham  v.   Van  Bergin,   10  cot,    32    Kan.    526,    4    Pac.    1,056; 

(N.  D.  43,  84  N.  W.  566.     See,  under  Association  v,  Moore,  4  Neb.  686,  59 

the    statute,    Jones    v.    Fidelity,    7  N.  W.  115. 
S.  D.  122,  63  N.  W.  553;   Mader  v. 
Piano,  17  S.  D.  553,  97  N.  W.  843. 


773  PROCEDURE  TO  FORECLOSE  MORTGAGE.        §  1094 

Sec.  1094.  Form  for  petition  for  foreclosure  of  mortgage 
where  third  party  assumes  the  mortgage  and 
agrees  to  pay  it. 

District  Court  op County,  State  of  Oklahoma. 

,  Plaintiff, 

No. . 

and ,  Defendants. 


vs. 


PETITION. 

1.     First  Cause  of  Action. — Plaintiff  says  that  is 

indebted  to  him  in  the  sum  of  $ ,   with  interest  at  the 

rate   of  per   cent,   per  annum,   payable   annually   from 

the  day  of  ,  19 — ,  on  a  certain  promissory  note, 

of  which   the   following  is  a  copy:     (Here   give   true   copy); 

that  on  or  about  the  day  of  ,  19 — ,  one  , 

as    assignee    of   and ,    in    consideration    of   the 

sum  of  $ ,  conveyed  to  said  the  following  de- 
scribed  real    estate   situated    in    the   county   of ,    State 

of  Oklahoma,  to-wit:  (Here  describe  real  estate);  that  said 
conveyance  was,  among  other  things,  made  subject  to  a  mort- 
gage  of  $ ,   given   by   one   ,   dated   ,    19 — , 

which  was  assumed  by  the  grantee  therein,  and  the  amount 
of  $ ,  being  the  amount  due  said  from  the  pro- 
ceeds of  a  sale  thereof,  and  said  agreement  to  assume  and  pay 
said  mortgage  was  made  as  part  of  said  consideration  for  the 
purchase  price  of  said  real  estate;  that  no  payments  have  been 
made  on  said  note  so  assumed,  and  there  is  now  due  and  pay- 
able to  plaintiff  from  defendant,  ,  on  the  assumption  of 

said  indebtedness,  the  sum  of  $ ,  witli  interest  thereon  at 

per  cent,  per  annum,  from  the  day  of  , 

19 — ,  which  plaintiff  claims  and  for  which  he  asks  judgment. 

2.     Second  Cause  op  Action. — For  a  second  cause  of  action 

herein  plaintiff  says  that  on  or  about  the  day  of , 

19 — ,  one and  ,  for  a  valuable  consideration,  sold 

and  conveyed  by  deed  in  fee  simple,  to and  ,  the 


§  1094  merwine's  trial  of  title  to  land.  774 

following  real  estate,  situated  in  County,  State  of  Okla- 
homa, to-wit:    (Here  describe  it);  that  on  the  day  of 

,  19 — ,  one ,  who  was  then  the  owner  of  the  afore- 
said real  estate,  in  order  to  secure  the  payment  of  a  certain 
promissory  note  given  for  the  purchase  price  of  said  real  estate, 

dated  the day  of  ,  19 — ,  for  the  sum  of  $ , 

bearing  interest  at  the  rate  of per  cent,  per  annum,  due 

and  payable  in  years  after  the  date  thereof,  executed, 

acknowledged  and  delivered  to  plaintiff  his  certain  mortgage 
deed,  and  thereby  conveyed  to  plaintiff  certain  parcels  of  real 
estate,  of  which  the  real  estate  above  described  forms  a  part; 
that  said  mortgage  had  a  condition  therein  contained  that,  if 
said  note  should  not  be  paid  when  due  as  aforesaid,  said  mort- 
gage deed  should  become  absolute.  Said  note  has  not  been  paid 
and  said  mortgage  deed  has  become  absolute.      Said  mortgage 

was  left  with  the  register  of  deeds  of County,  Oklahoma, 

for  recording  on  the  day  of  ,   19 — ,  at  

o'clock,  —  m.,  of  said  day  was  by  said  register  of  deeds  duly 

recorded  in  the  records  of  his  office  in  Book ,  page . 

Plaintiff  further  states  that  at  the  time  of  the  conveyance  of 

said  premises  by  said  ,  on  the  day  of  , 

19 — ,  to  the  said and ,  the  said and • 

agreed  in  said  deed  to  assume,  and  they  did  assume,  the  pay- 
ment  of  said  $ in   said  mortgage   deed,    and  that  said 

assumption  of  the  part  of  the  said and was  made 

as  a  part  of  the  purchase  price  of  said  premises;  that  on  the 

day  of  ,  19—,  said  and  ,  by  deed, 

conveyed  said  premises,  with  other  real  estate,  to  ,  and 

in  said  deed  the  said  agreed  to  assume,  and  did  assume, 

as  part  of  the  consideration  of  said  sale  and  conveyance,  the 

sum  of  $ of  the  mortgage  debt  on  said  real  estate,   as 

above  set  out,  together  with  interest  thereon  at  the  rate  of 

per  cent,  from  the  day  of  ,  19— ;  that  said  mort- 
gage is  valid  and  subsisting  and  is  a  lien  on  said  real  estate 

above  described  for  said  sum  of  $ ,  with  interest  on  said 

sura  at  the  rate  of  per  cent,  from  the  day  of 


775  PROCEDURE  TO  FORECLOSE  MORTGAGE.         §  1095 

,  19 — ,  and  said  defendant,  ,  has  failed  to  pay  the 

same. 

Wherefore,  plaintiff  prays  judgment  for  $ ,  with  in- 
terest at per  cent,  from  the day  of ,  19 — ; 

that  said  mortgage  be  foreclosed  and  said  real  estate  sold  to 
satisfy  the  judgment  so  to  be  obtained,  and  for  such  other  and 
further  relief  as  equity  and  the  nature  of  the  case  may  require. 


Attorney  for  Plaintiff. 

Sec.  1095.  Form  for  petition  for  foreclosure  of  a  mortgage 
where  successive  grantees  have  assumed  aad 
agreed  to  pay  it. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No. 


and 


as  Administrators  of  the  Estate  of 
,  Deceased,  Defendants. 

PETITION. 

Now  comes ,  the  plaintiff  herein,  and,  for  her  petition 

herein,  says : 

1.    For  her  first  cause  of  action  herein,  plaintiff  says  that  on 

the  day  of  ,   19 — ,  the  defendants,  and 

,  executed  and  delivered  to  one  their  joint  and 

several  promissory  note,  of  which  note  the  following  is  a  copy 
with  all  the  credits  and  indorsements  thereon,   to-wt:    (Here 

copy  note);  said  note  is  indorsed  as  follows:    Pay  or 

order,  without  recourse  on  me,  $ ,  and  credit  it  as  follows : 

(Here  give  the  credits)  ;  said  note  is  secured  by  a  mortgage  on 
the  real  estate  last  described  in  the cause  of  action  herein. 


§  1095  merwine's  trial  of  title  to  land.  776 

At  the  time  of  the  execution  and  delivery  of  said  note,  said 
and  were  the  owners  of  said  real  estate,  and  on 


the  day  of  ,  19 — ,  by  deed  of  general  warranty, 

sold  and  conveyed  said  real  estate     to  the  above  ,  who 

thereupon,  by  agreement  in  writing  set  forth  in  said  deed,  agreed 

by  and  with  said and  ,  their  heirs  and  assigns, 

as  a  part  of  the  consideration  thereof,  to  assume,  and  he  did 
assume,  the  payment  of  the  principal  and  all  the  interest  on  said 

note,  from  the day  of 19 — ,  together  with  all  other 

charges  which  were  a  lien  on  said  premises.  Said  deed  is  re- 
corded in  Book  ,  at  page  ,  in  the  office   of  the 

register  of  deeds. 

On  the  - — ■ — —  day  of  ,  19 — ,  said  died  intes- 
tate, and  said  and  were,  on  the  day  of 

,  19 — ,  by  the  county  court  of  County,  State  of 

Oklahoma,  duly  appointed  administrators  of  his  said  estate,  and 
said  administrators  thereupon  duly  qualified  and  entered  upon 
their  duties  as  such  administrators. 

On  the  day  of  ,  19 — ,  said and  , 

his  wife,  by  deed  of  general  warranty,  sold  and  conveyed  said  real 

estate  last  described  in  said cause  of  action  herein,  to  the 

defendants  herein, and ,  who  thereupon,  by  agree- 
ment in  writing  set  forth  in  said  deed,  agreed  to  and  with  said 

,   his    heirs   and   assigns,    as    part    of   the    consideration 

thereof,  to  assume,  and  they  did  assume,  the  payment  of  the 

principal  of  said  note,  with  all  interest  thereon,  from  the  

day  of ,  19 — ,  together  with  all  the  other  charges  against 

said  real  estate.     Said  deed  was  duly  recorded  in  Book , 

at  page  ,  in  the  office  of  the  register  of  deeds  of  said 

county. 

On   the  day  of  ,   19 — ,   the   said  and 

,  his  wife,  and  the  said  and  ,  his  wife,  by 

deed  of  general  warranty,  sold  and  conveyed  said  real  estate 

last  described  in cause  of  action  herein,  to  the  defendant, 

,  who  thereupon,  by  agreement  in  writing  set  forth  in 

said  deed,  agreed  to  and  with  the  said and ,  their 

heirs  and  assigns,  as  part  of  the  consideration^  thereof,  to  assume, 


777  PROCEDURE   TO   FORECLOSE    MORTGAGE.  §  1095 

and  he  did  assume,  the  payment  of  the  principal  and  interest 

on  said  note,  from  and  after  the  day  of  ,  19 — , 

together  with  all  charges  against  said  real  estate.  Said  deed 
was  duly  recorded  in  Book ,  at  page  ,  of  the  rec- 
ords in  the  office  of  the  register  of  deeds  of  said  county. 

On  the  day  of ,  19 — ,  by  deed  of  general  war- 
ranty,   and sold  and  conveyed  the  real  estate  last 

described  in  cause  of  action  herein  to  the  defendant, 

,  who  thereupon,  by  agreement  in  writing,  set  forth  in 

said  deed,  agreed  by  and  with  said  and  ,  their 

heirs  and  assigns,  as  part  of  the  consideration  thereof,  to  as- 
sume, and  he  did  assume,  the  payment  of  the  principal  and  all 
interest  on  said  note,  together  with  all  the  other  charges  against 
the  same.  Said  deed  was  recorded  in  the  office  of  the  register 
of  deeds  of  said  county  in  Book ,  at  page . 

Said is  the  present  owner  of  said  real  estate  last  herein 

described.    Plaintiff  is  the  legal  owner  and  holder  of  said  note 

and  there  is  due  her  from  the  defendant,  ,  as  principal, 

and  the  said and ,  as  administrators  of  the  estate 

of ,  deceased, , , , and , 

as  sureties  thereon,  the  sum  of  $ ,  with  interest  on  said  sum 

from  the day  of ,  19 — ,  at  the  rate  of per 

cent,  per  annum. 

2.  For  a  second  cause  of  action  herein,  plaintiff  says  that  at 
the  time  of  the  execution  and  delivery  of  the  note  described  in 
the  first  cause  of  action,  and  to  secure  the  payment  of  the  same, 

the  defendants,  and  ,  executed  and  delivered  to 

said  their  certain  mortgage  deed,  thereby  conveying  to 

him,  his  heirs  and  assigns  forever,  the  following  described  real 

estate,  situated  in  the  county  of  ,   State  of  Oklahoma, 

to-wit:   (Here  describe  the  same.) 

Said  mortgage  deed  contained  a  condition  that  if  said 

and should  pay  or  cause  to  be  paid  to  said  ,  his 

heirs  and  assigns,  the  note  described  in  the  first  cause  of  action 
herein,  when  the  same  should  become  due,  \nth  interest  on  the 
same,  then  said  mortgage  should  become  void,  otherwdse  to  be 
and  remain  in  full  force  and  virtue  in  law  forever. 


§  1096  merwine's  trial  op  title  to  land.  778 

By  reason  of  the  nonpayment  of  said  promissory  note  and 
interest  due  thereon,  said  mortgage  has  become  absolute. 

On  the day  of ,  19 — ,  said  mortgage  was  deliv- 
ered to  the  register  of  deeds  of  said  county  of ,  State  of 

Oklahoma,  for  record,  and  was  duly  recorded  by  him  on  the 

day  of ,  19 — ,  at  o'clock,  —  m.,  in  Book 

,  at  page ,  of  the  records  in  his  office. 

On  the  day  of  ,  19 — ,  said  mortgage  was  for 

value  received  duly  assigned  by  said  to  the  plaintiff,  by 

assignment  in  writing,  which  assignment  was  by  the  register  of 
deeds  of  said  county  duly  entered  on  the  records  of  said  county 
according  to  law. 

Wherefore,  plaintiff  prays  that  said  defendant,  be 

required  to  set  forth  his  said  claim  on  said  premises,  or  be 
forever  barred  from  asserting  the  same ;  that  she  may  have  judg- 
ment against  said  , ,  ,  ,  ,  and 

,  for  said  sum  of  $ ,  with  interest  thereon  from  the 

day  of ,  19 — ,  at  the  rate  of per  cent,  per 

annum ;  that  said  mortgage  deed  be  foreclosed,  and  the  premises 
therein  described  sold  as  upon  execution,  and  that  the  proceeds 
of  such  sale  be  applied  upon  said  mortgage  debt,  and  for  such 
other  and  further  relief  as  equity  and  the  nature  of  the  case 

may  require.  —— , 

Attorney  for  Plaintiff. 

Sec.  1096.    Form  for  petition  seeking  to  reform  a  mortga;ge 
and  foreclose  the  same,  marshaling  the  liens. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No. 
and ,  Defendants. 


PETITION. 

1.     First  Cause  of  Action. — Plaintiff  says  there  is  due  from 

said  on  a  promissory  note  of  said  ,  the  sum  of 

■$ ,  with  interest  thereon  from  the  day  of  , 

19 — ,  of  which  promissory  note  the  following  is  a  copy,  with  all 
the  credits  and  indorsements  thereon,  to-wit:    (Here  set  forth 


779  PROCEDURE   TO   FORECLOSE    MORTGAGE.  §  1096 

copy  of  note  with  all  credits  and  indorsements  thereon.)  Said 
note  is  indorsed  and  credited  as  follows:  (Here  write  the  same 
as  they  appear  on  the  note.) 

2.     Second  Cause  of  Action. — Plaintiff  says  he  adopts  each 

of  the  allegations  of  the  said  first  cause  of  action  as  though 

specifically   alleged    in   this    cause    of    action ;    that,    to   secure 

the  payment   of  the   said   promissory   note,    dated   the   

day   of  ,   19 — ,    and   made   by  said  payable   to 

the  order  of  said  ,  plaintiff,  as  follows,  to-wit :      (Here 

state  the  time  when  said  note  became  due  and  all  its  terms.) 
To  secure  the  payment  of  said  promissory  note  hereinbefore 
mentioned  according  to  the  tenor  and  effect  thereof,  the  said 

,  together  with  his  said  wife,  the  defendant, ,  duly 

executed,  acknowledged  and  delivered  to  the  plaintiff  the  said 

,   joining  with  her  said  husband  in  the  granting  part, 

their  certain  mortgage  deed  bearing  date  of  the  day  of 

,  19 — ,  and  thereby  intending  to  convey  to  the  plaintiff, 

in  fee  simple,  free  from  all  rights  in  and  to  the  same,  the  follow- 
ing described  lands,  tenements  and  hereditaments,  situated  in 

the  county  of  ,  and   State  of  Oklahoma,  to-wit:    (Here 

describe  real  estate.)  But,  by  the  mutual  mistake  and  inadver- 
tence of  all  the  parties  thereto,  said  mortgage  described  and 
conveyed  the  following  described  real  estate,  to-wit:  (Here  de- 
scribe it.) 

Said  mortgage  was  delivered  to  the  register  of  deeds  of  said 

■ County,  Oklahoma,  for  record,  according  to  law,  on  the 

day  of  ,  19 — ,  at  o'clock,  —  m.,  and  was 

duly  recorded  in  Book  ,  page  ,  of  the  records  of 

his  said  office. 

Said  mortgage  deed  has  a  condition  therein  written  that  in 
case  the  said should  pay  or  cause  to  be  paid  said  prom- 
issory note,  together  with  interest  thereon,  when  and  as  it  should 
become  due,  then  said  deed  should  be  void,  otherwise  to  be  and 
remain  in  full  force.  Said  note  is  past  due  and  unpaid  and 
said  mortgage  has  become  absolute. 

The  said  ,  defendant  herein,  claims  to  have  some  claim 

upon  or  interest  in  said  above  described  premises,  as  does  the 


§  1097  merwine's  trial  of  title  to  land.  780 

said  defendant,  ,  but  their  liens  and  claims,  if  any,  are 

inferior  and  subordinate  to  the  mortgage  of  the  plaintiff  herein. 
"Wherefore,  plaintiff  asks  judgment  against  said  defendant, 

,  for  the  sum  of  $ ,  with  interest  on  said  sum  from 

the day  of ,  19 — ;  also  that  said  mortgage  may  be 

reformed  and  corrected  by  proper  decree  of  this  court  so  as  to 
conform  to  the  real  intention  of  said  parties;  that  when  said 
mortgage  is  so  corrected  and  reformed,  that  the  same  may  be 
foreclosed  and  said  premises  sold  as  upon  execution,  to  satisfy 

said  mortgage  indebtedness  from  said ,  and  the  judgment 

by  the  plaintiff  so  to  be  obtained ;  that  the  said and 

be  required,  by  appropriate  pleading  in  this  action,  to  set  forth 
the  nature  and  amount  of  their  respective  claims  and  liens,  if 
any  they  have,  on  said  real  estate,  and  that  the  respective  liens 
and  claims  of  the  plaintiff  and  said  defendants  be  marshaled 
and  determined,  and  ordered  to  be  paid  by  the  court  out  of  the 
proceeds  cf  the  sale  of  said  real  estate  in  the  order  of  their 
respective  priorities,  and  for  such  other  and  further  relief  as 
equity  and  the  nature  of  the  case  may  require.* 


Attorney  for  Plaintiff. 


Sec.  1097.    Form  for  petition  in  an  action  to  declare  a  deed  a 
mortgage,  and  foreclosing  the  same. 

District  Court  of  County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No. 
,  Defendant. 


PETITION. 

Comes  now  the  plaintiff,  and,  for  his  cause  of  action  against 
the  defendant  herein,  allpges  and  states : 

*  Adapted      from      Yaple's      Code 
Practice. 


781  PROCEDURE  TO  FORECLOSE  MORTGAGE.        §  1097 

1.     That  on  the  day  of  ,  19—   the  defendant 

-,  was  the  owner  of  the  following  described  real  estate  iu 


the  county  of ,  State  of  Oklahoma,  to-wit :  (Here  describe 

it.) 

2.  That  on  said  day  said  defendant,  being  greatly  embar- 
rassed in  his  affairs,   and  desirous   of  borrowing  the   sum  of 

$ ^  applied  to  plaintiff  for  that  purpose  and  obtained  a 

loan  from  him,  the  said  plaintiff,  for  the  sum  of  $ ,  due 

and  payable  • months  after  date,  with  interest  at  

per  cent,  per  annum;  that  to  secure  said  loan,  the  defendant 
executed  a  deed  to  said  plaintiff  for  the  above  described  real 
estate,  said  deed  being  absolute  in  form,  but  intended  by  both 
the  parties  thereto  to  stand  as  security  for  said  loan,  and  was 
made  for  that  purpose. 

3.  That  on  the day  of ,  19—,  plaintiff  entered 

into  possession  of  said  real  estate  under  said  deed,  and  has 
applied  all  the  rents  and  profits  thereof  to  his  own  use,  said 
rents  and  profits  amounting  to  the  sum  of  $ . 

4.  That  the  time  has  expired  in  which  the  said  defendant  was 
to  pay  and  satisfy  said  sum  of  money  so  borrowed  as  aforesaid, 
and  that,  by  reason  of  said  default,  said  sum  has  become  due 
and  said  mortgage  has  become  absolute. 

5.  That  on  the  day  of  ,  19—,  said  deed  was 

left  for  record  with  the  register  of  deeds  of  said  county,  and 

was  by  him  duly  recorded  in  Book ,  page  ,  of  the 

records  of  his  said  ofSce. 

Wherefore,  plaintiff  prays  that  an  accounting  may  be  taken 
of  the  amount  due  from  said  defendant  to  plaintiff  after  deduct- 
ing the  rents  and  profits  aforesaid ;  that  said  deed  be  declared  a 
mortgage ;  that  the  same  be  foreclosed  and  said  real  estate  sold 
as  upon  execution,  to  satisfy  the  same,  and  for  such  other  and 
further  relief  as  equity  and  the  nature  of  the  case  may  require. 

— ■ J 

Attorney  for  Plaintiff. 


§  1098  merwine's  trial  of  title  to  land.  782 

Sec.  1098.  The  procedure  by  which  a  mortgage  is  foreclosed 
— The  form  for  the  petition  in  foreclosing  a 
building  and  loan  mortgage. 

District  Court  of County,  State  of  Oklahoma. 

The Association,  Plaintiff, 


vs. 


No. 


and  ,  Defendants. 


PETITION. 

Comes  now  The Association,  a  corporation  duly  organ- 
ized and  existing  under  the  laws  of  the  State  of  Oklahoma, 
plaintiff  herein,  and  for  its  first  cause  of  action  against  the 
defendants,  ,  and ,  alleges  and  states: 

1 .  That  heretofore,   to-wit :   on   the  day  of  •, 

19 — ,  at ,  Oklahoma,  the  said  defendant,  ,  a  single 

person,  for  a  good  and  valuable  consideration,  made,  executed 
and  delivered  to  said  plaintiff  his  certain  promissory  note  in 
writing  of  that  date  as  follows,  to-wit :    Said  note  being  for  the 

principal   sum   of    $ ,    due    and    payable    to   plaintiff   in 

monthly  installments  of  $ each,   on  the  day  of 

each  and  every  month,  $ of  said  sum  being  due  on 

shares  of  the  capital  stock  of  said  corporation,  series ,  and 

$ of  said  sum  being  the  interest  on  said  principal  sum  of 

$ ;  that  by  reason  thereof,  the  said  defendant,  ,  be- 
came liable  and  bound  to  pay  to  the  said  plaintiff  the  amount 

of  said  promissory  note  in  installments  of  $ on  the 

day  of  each  and  every  month  after  the  day  of  , 

19 — ,  as  above  set  forth  according  to  the  face  and  tenor  of  said 
note,  a  copy  of  which,  with  all  the  indorsements  thereon,  is 
hereto  attached,  marked  "Exhibit  A"  and  made  a  part  of  this 
petition. 

2.  That  under  and  according  to  the  terms  and  face  of  said 

note,  said  defendant,  ,  promised  and  agreed  that  if  said 

note  should  be  placed  in  the  hands  of  an  attorney  for  collection, 

he  would  pay  the  sum  of  $ attorney's  fee,  and  all  other 

costs  of  collection ;  that  said  note  has  been  placed  in  the  hands  of 


783  PROCEDURE   TO   FORECLOSE    MORTGAGE.  §  1098 

,  an  attorney  at  law,  of  Oklahoma,  for  collection, 


whereby  said  defendant, ,  became  liable  and  bound  to  pay 

said  sura  of  $ ,  as  attorney's  fee,  and  all  other  costs  of 

collection. 

2.  Second  Cause  of  Action. — That  at  the  time  and  place 
and  as  part  and  parcel  of  the  same  contract  and  transaction,  and 
for  the  purpose  of  securing  the  payment  of  said  promissory  note, 
upon  the  terms  and  in  the  installments  as  hereinabove  set  forth, 

said  defendant,  ,  executed  and  delivered  to  said  plaintiff 

his  certain  mortgage  in  writing,  thereby  selling  and  conveying 

unto  said  plaintiff.  The  Association,   all  the  following 

described  real  estate  in  County,  in  the  State  of  Okla- 
homa, to-wit:  (Here  describe  real  estate),  with  all  the  improve- 
ments thereon  and  appurtenances  thereunto  belonging,  and  did 
warrant  the  title  to  the  same,  and  waive  appraisement  thereof, 
which  said  mortgage  was   duly  signed  by  the  defendant   and 

acknowledged  by  him  and  is  duly  recorded  in  Book  of 

the  mortgage  records  on  page thereof,  in  the  office  of  the 

register    of   deeds    of   County,   Oklahoma,   a    true   and 

correct  copy  of  which  mortgage,  with  all  covenants  therein  con- 
tained, is  hereto  attached,  marked  "Exhibit  B,"  and  is  hereby 
made  a  part  of  this  petition. 

By  the  terms  of  said  mortgage  and  the  conditions  thereof,  as 
fully  set  forth  therein,  it  is  provided  specifically  that  said  de- 
fendant,   ,  shall  pay  the  installments  as  set  out  in  para- 
graph one  of  this  petition  on  or  before  the  day  of  each 

and  every  month;  that  said  defendant,  ,  within  

days  after  the  same  become  due  and  payable,  pay  all  taxes  and 
assessments  which  will  be  levied  on  said  land,  or  existing  or 
assessed  on  said  land  created  or  represented  by  said  mortgage, 
and  it  is  further  provided  therein  that  if  said  defendant  make 
default  in  the  payment  of  said  taxes  and  assessments,  the  plain- 
tiff may  pay  said  taxes  and  assessments,  and  that  the  sum  so 
paid  shall  be  a  further  lien  on  said  described  premises  under 
said  mortgage,  and  should  default  be  made  in  the  aforesaid 
monthly  sums  or  installments,  or  any  fine,  or  any  part  of  said 
taxes,  when  the  same  are  due  and  payable,  as  provided  in  said 


§  1098  merwine's  trial  of  title  to  land,  784 

note  and  mortgage,  and  the  by-laws  of  said  association,  and 
should  the  same  or  any  part  thereof  remain  unpaid  for  a  period 

of months,  the  first  aforesaid  principal  sum  of  $ , 

with  all  arrearages  and  all  penalties  and  taxes  shall  become  due 
and  payable  immediately  thereafter. 

Said  mortgage  further  provides  that  said  defendant  shall  pay 

plaintiff  the  sum  of  $ ,  as  a  reasonable  attorney  fee  in 

addition  to  other  legal  costs  and  expenses  of  collection,  if  pro- 
ceedings are  taken  in  equity  to  foreclose  said  mortgage  in  case 
of  default  in  any  of  its  covenants,  which  sum  shall  be  an  addi- 
tional lien  on  said  premises. 

Plaintiff  further  alleges  that  the  conditions  of  said  note  and 
of  said  mortgage  have  been  broken  in  this,  to-wit :    That  on  the 

day  of  ,  19 — ,  there  became  due  and  payable  to 

plaintiff,  according  to  the  contract  and  mortgage  aforesaid,  one 
of  the  monthly  installments  of  $ ;  that  said  sum  has  re- 
mained unpaid  for  more  than  months  thereafter,  towit: 

up  to  the  date  hereof,  and  that  no  part  of  same  has  been  paid, 
although  payment  thereof  has  been  demanded  of  the  defendant; 

that  on  the  day  of ,  19 — ,  and  on  the day 

of  each  and  every  month  thereafter,  up  to  the  date  of  the  filing 

of  this  petition,  other  monthly  installments  of  the  sum  of  $ • 

did  became  due  and  payable  to  this  plaintiff,  and  have  so 
remained  due  and  unpaid  to  the  date  hereof ;  that  there  was  paid 
on  said  note  and  mortgage  installments  on  the  principal  and 
interest,  up  to  and  including  the  amount  due  and  payable  on 

the day  of ,  19 — ,  an  amount  in  the  aggregate  of 

the  sum  of  $ ;  that  no  payment,  or  part  payment,  has 

been  made  on  said  note  or  mortgage,  or  any  installment  thereof, 
by  said  defendant,  becoming  due  and  payable,  since  the  date  last 
above  mentioned,  though  payment  thereof  has  often  been  de- 
manded, and  that  said  installments,  together  with  fines  and 
penalties,  remain  wholly  unpaid.  That,  by  reason  of  the  terms 
and  in  accordance  with  the  conditions  of  said  note  and  mortgage, 
all  of  said  indebtedness,  including  the  balance  due  on  said 
principal  sum  of  .$ ,  vnth  all  arrearages  thereon,  and  all 


785  PROCEDURE   TO   FORECIX)SE    MORTGAGE.  §  1098 

fines  and  penalties  became  due  and  payable  to  this  plaintiff 
upon  the  happening  of  said  default,  amounting  in  all  to  the 

sum  of  $ ,  together  with  an  attorney  fee  of  $ ,  and 

the  costs  of  this  action. 

Plaintiff  further  alleges  that  in  said  mortgage  it  is  especially 

covenanted  and  agreed  by  said  that,  upon  the  filing  of 

the  petition  in  foreclosure,  the  holder  of  said  mortgage  shall  be 
entitled  to  the  possession  of  said  premises,  and  that  a  receiver 
may  forthwith,  or  at  any  time  thereafter,  be  appointed  for  the 
same,  to  collect  and  apply  the  rents  and  profits,  less  reasonable 
expenses  of  the  receivership,  to  the  payment  of  said  indebted- 
ness, and  the  said  defendant, ,  expressly  consents,  by  said 

covenants  in  said  mortgage,  to  the  appointment  of  said  receiver. 
Plaintiff  further  alleges  that,  by  reason  of  said  default  of  the 

said  defendant,  ,  in  the  payment  of  said  principal  and 

the  installments  as  they  matured,  according  to  the  tenor  of  said 
note  and  mortgage,  the  conditions  of  said  mortgage  and  note 
have  been  broken  and  the  whole  of  the  indebtedness  thereby 
secured  has  matured  and  is  now  due  and  payable,  together  with 
interest,    fines    and   penalties,   as   well   as   an    attorney   fee   of 

$ ,   becoming   due   and   payable   upon   the   filing   of   this 

petition  in  foreclosure,  as  stipulated  in  said  mortgage ;  that  said 
premises  are  incumbered  by  other  mortgages  and  liens,  and  are 
scant  security  for  the  payment  of  said  note  and  mortgage,  and 
by  reason  thereof,  said  plaintiff  is  entitled  to  the  foreclosure  of 
said  mortgage  on  said  premises,  and  to  have  the  same  sold 
without  appraisement,  to  satisfy  all  said  indebtedness,  penalties, 
fines,  costs  and  attorney  fee ;  that  a  receiver  should  be  appointed 
forthwith  by  this  honorable  court  to  take  charge  of  said  real 
estate,  to  preserve  the  same  from  waste,  to  pay  the  taxes  thereon 
and  collect  the  rents  and  issues  thereof,  and  do  and  perform  such 
other  functions  usual  for  a  receiver  in  such  cases. 

Plaintiff   further  alleges  that  and  ,  his  wife, 

have,  or  claim  to  have,  some  interest  in  and  to  the  above  de- 
scribed real  estate,  or  some  part  thereof,  the  exact  nature  of 
which  is  unknown  to  this  plaintiff,  but  plaintiff  alleges  that  said 


§  1098  merwine's  trial  of  title  to  land.  786 

right,  title  or  interest  of  the  said  and  ,  his  wife, 

if  any  there  be,  is  inferior  and  junior  to  the  claim  of  this  plain- 
tiff, and  plaintiff  prays  that  said  last  named  defendants  be  re- 
quired to  answer  herein,  setting  up  such  interest  as  they  may 
have  in  and  to  said  real  estate,  or  be  forever  barred. 

Wherefore,  the  premises  considered,  the  plaintiff  prays  judg- 
ment on  its  first  cause  of  action  against  said  principal  defendant, 

,  for  the  balance  unpaid  on  said  principal  sum  of  $ 

mentioned  and  set  up  in  said  note  and  mortgage,  for  interest  and 
installment  claims  due  thereon,  together  with  all  fines,  penalties, 

in  the  aggregate  sum  of  $ ,  with  interest  thereon,  at  the 

rate  of  per  cent,  per  annum,  from  the  day  of 

,  19 — ,  and  for  said  sum  of  $ ,  attorney's  fee,  and 

all  costs  of  this  action,  and  for  further  judgment  foreclosing  the 

lien  of  said  plaintiff  on  said  property  located  in County, 

State  of  Oklahoma,  to-wit :  (Here  specifically  describe  real  es- 
tate),  with  all  the  improvements  thereon,   and   appurtenances 

thereunto  belonging,  and  forever  barring  defendant, ,  and 

,  his  wife,  each  and  both  of  them,  from  any  lien,  estate, 

right,  claim  or  title  thereto,  and  that  a  receiver  be  appointed 
forthwith  to  take  charge  of  said  premises,  to  preserve  the  same 
and  collect  and  apply  the  rents  and  issues  thereof  as  above  set 
forth ;  that  said  mortgaged  premises  be  ordered  to  be  sold,  with- 
out appraisement,  to  satisfy  said  judgment,  attorney's  fee  and 

costs,  and  that  said  judgment  bear  interest  at  the  rate  of • 

per  cent,  per  annum,  and  for  such  other  and  further  special 
relief  as  may  be  just  and  equitable.* 


Attorney  for  Plaintiff. 


State  of  Oklahoma, County,  ss. : 

,  of  lawful  age,  being  first  duly  sworn,  says  that  he  is 

duly  authorized  agent  of  The  Association,  a  cor- 


poration, plaintiff  in  the  above  and  foregoing  action;  that  he 

*  Here   attacli    copy   of   note    and  actions  for  money  only.    See  Section 

mortgage  sued  on.    The  praecipe  and       ,  herein,  for  forms. 

summons  are  the  same  as  in  other 


787  PROCEDURE  TO  FORECLOSE  MORTGAGE.         §  1099 

has  read  the  above  and  foregoing  petition  and  knows  the  con- 
tents thereof,  and  that  tha  statements  therein  contained  are  true. 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


[Seal.]  Notary  Public. 

My  commission  expires . 

Sec.  1099.     Application  for  the  appointment   of   a  receiver. 

District  Court  of County,  State  of  Oklahoma. 

The Association,  Plaintiff, 

vs.  No.  . 

, and ,  Defendants. 

APPLICATION    FOR   RECEIVER. 

Comes  now  the  plaintiff,  ,  and  represents  to  the  court, 

in  addition  to  the  verified  allegations  of  its  petition,  that  the 
property  sought  to  be  foreclosed  herein,  includes  a  building  at 
,  Oklahoma ;  that  no  care  is  being  bestowed  on  said  prop- 
erty; that  the  same  is  being  held  uncared  for  and  is  deteriorat- 
ing in  value;  that  the  same  is  incumbered  by  divers  mortgages 
and  other  liens;  that  said  property  is  scant  security  for  the 
same ;  that  said  property  is  being  wasted,  and  is  in  danger  of 

greater  waste  and  wall  be  seriously  damaged;  that  said  , 

as  said  mortgagor,  consented  that  a  receiver  might  be  appointed 
herein  in  case  of  foreclosure  of  his  mortgage. 

"Wherefore,  this  applicant  prays  the  court  for  an  order  ap- 
pointing a  receiver  to  take  charge  of  the  property  described  in 
the  petition  herein,  to-wit:  (Here  specifically  describe  it),  and 
to  collect  the  rents,  issues  and  profits  thereon ;  to  pay  the  neces- 
sary taxes  and  make  the  necessary  repairs,  and  to  perform  all 
the  usual  functions  of  a  receiver;  to  make  report  of  his  acts  and 
doings  to  this  court,  and  to  disburse  the  money  by  him  collected 
in  accordance  with  the  further  orders  of  this  court. 


Attorney  for  Plaintiff. 


§  1100  mebwine's  trial  op  title  to  land.  788 

Sec.  1100.     The  order  appointing  receiver. 

District  Court  of County,  State  op  Oklahoma. 

The Association,  Plaintiff, 

vs.  No. . 

, and ,  Defendants. 

ORDER   APPOINTING   RECEIVER. 

Now,  on  this day  of ,  19 — ,  this  cause  came  on 

for  hearing  upon  the  application  of  the  plaintiff  for  the  appoint- 
ment of  a  receiver  herein,  and  the  court,  having  read  the  verified 
petition  filed  herein,  and  having  heard  the  evidence  adduced  in 
support  of  said  application,  and  being  fully  advised  in  the  prem- 
ises, finds  that  the  defendant, ,  is  neglecting  the  property 

for  which  a  receiver  is  sought;  that  no  care  is  being  bestowed 
on  the  same ;  that  the  same  is  uncared  for  and  deteriorating  in 
value ;  that  the  same  is  incumbered  by  mortgages  and  other  liens ; 
that  said  property  is  scant  security  for  the  same ;  that  the  prop- 
erty is  being  wasted  and  is  in  danger  of  greater  waste  and  will 
be  seriously  damaged,  unless  conserved,  and  the  premises  con- 
sidered, it  is  therefore  ordered  that  be,  and  he  is  hereby 

appointed  receiver  to  take  charge  of  said  property  described  in 
the  petition  herein,  to-wit:  (Here  describe  it):  to  collect  the 
rents,  issues  and  profits  thereof,  to  pay  the  necessary  taxes  and 
make  the  necessary  repairs,  and  perform  all  the  usual  functions 
of  a  receiver ;  to  make  report  of  his  acts  and  doings  to  this 
court,  and  to  disburse  the  money  by  him  collected  in  accordance 
with  the  further  orders  of  this  court,  and  to  give  bond  with 

surety  to  be  approved  by  the  clerk  of  the  district  court  of 

County,  in  the  sum  of  $ . 


Judge  of  said  Court. 


789  PROCEDURE  TO  FORECLOSE  MORTGAGE.        §  1101 

Sec.  1101.     Afladavit  for  service  by  publication. 

District  Court  of County,  State  of  Oklahoma. 

The Association,  Plaintiff, 

vs.  No.  . 

, and ,  Defendants. 


AFFIDAVIT  TO   OBTAIN   SERVICE   BY  PUBLICATION. 

State  of  Oklahoma, Coiintj^  ss. : 

,  being  first  duly  sworn,  says  that  he  is  attorney  of 

record  for  the  plaintiff  in  the  above  action;  that  on  the  


day  of  ,  19 — ,  the  plaintiff  filed  in  the  district  court  of 

County,  State  of  Oklahoma,  a  petition  in  the  above  en- 
titled cause  against  the  defendants, ,  and 


showing  that  said  plaintiff  is  the  o\^Tier  and  holder  of  a  certain 
promissory  note,  executed  to  said  plaintiff  by  the   defendant, 

,  in  the  sum  of  $ ,  said  note  being  secured  by  a 

mortgage  en  the  folloAving  described  real  estate  of  said  defend- 
ant,   ,  to- wit:  (Here  describe  real  estate);  that  the  con- 
ditions of  said  note  and  mortgage  have  been  broken  and  the 
amounts   secured   thereby    are   now   due   and   payable    to   said 

plaintiff;  that  and  ,  have,  or  claim  to  have,  some 

right,  title  or  interest  in  and  to  said  real  estate,  and  that  this 
action  is  brought  for  the  purpose  of  foreclosing  said  mortgage 
upon  the  real  estate  described  above. 

Affiant    further   says   summons    was   issued    for   and 

,    and    the    same    was    returned    not    found;    that    said 

and  are  nonresidents  of  the  State  of  Oklahoma, 

and  that  service  of  summons  cannot  be  made  upon  them,  or 
either  of  them  within  the  State  of  Oklahoma;  that  diligent 
inquiry  has  been  made  by  said  plaintiff  and  his  said  attorney, 

at    the    last    known    place    of    residence    of    said    and 

,    but    no    trace    of    said    defendants    in    the    State    of 

Oklahoma    can   be   found;    that    the   last    known    residence    of 

said  and  was  in  the  city  of  ,  in  the  State 

of  ;  that  said  plaintiff  wishes  to  obtain  service  on  said 


§§1102,1103         merwine's  trial  op  title  to  land.  790 

defendants,   and  ,   by   publication,   and    further 

affiant  saith  not.  • 

Subscribed  and  sworn  to  before  me  this day  of , 

19—.  , 


[Seal.]  Notary  Public. 

My  commission  expires . 

Sec.  1102.     Notice  by  publication. 

District  Court  of  • County,  State  of  Oklahoma. 

The Association,  Plaintiff, 

vs.  No.  . 

, and ,  Defendants. 

NOTICE    BY    PUBLICATION. 

The  defendants, and ,  will  take  notice  that  they 

have  been  sued  in  the  above  named  court  in  an  action  to  fore- 
close a  certain  mortgage,  owned  and  held  by  the  plaintiff,  on 
the  following  described  real  estate,  belonging  to  the  defendant, 
,  to-wit:  (Here  describe  it),  in  which  said  described  prem- 
ises, the  said and  appear  to  have  or  claim  some 

right,  title  or  interest,  and  said  defendants, and  , 

must  answer  said  petition  of  plaintiff  filed  herein  before  the 

day  of  ,  19 — ,  or  said  petition  will  be  taken  as 

true  and  judgment  for  said  plaintiff,  foreclosing  the  lien  of 
plaintiff's  said  mortgage  on  said  described  premises  will  be 
rendered  accordingly.  — — ^ 

[Seal.]  Clerk  of  said  Court. 


Attorney  for  Plaintiff. 

Sec.  1103.     The  proof  of  service  by  publication. 

State  of  Oklahoma, County,  ss. : 

-,  of  lawful  age,  being  first  duly  sworn,  says  that  he  is 


tlif" of  the  ,  a  weekly  newspaper  published  and 

printed  in  the  city  of , County,  Oklahoma,  and  of 

general  circulation  in  said  county  and  State;  that  said  


791  PROCEDURE   TO   FORECLOSE    MORTGAGE.  §  1104 

has  been  published  for  more  than  fifty-two  consecutive  weeks 
next  prior  to  the  dates  on  which  the  copy  herein  referred  to  was 
published,  and  the  notice  of  which  a  true  copy  is  hereto  attached, 

was  published  in  the  regular  and  entire  edition  of  said  , 

and  not  a  supplement  thereof,  for  weeks,  the  first  pub- 
lication being  on  the  day  of  ,  19 — ,  and  the  last 

on  the day  of ,  19 — . 


Subscribed  and  sworn  to  before  me  this day  of 

19—.  


[Seal.]  Notary  Public. 

My  commission  expires  . 

Sec.  1104.     Decree  of  foreclosure. 

District  Court  of County,  State  of  Oklahoma. 

The Association,  Plaintiff, 

vs.  No. . 

. , and ,  Defendants. 

DECREE  OF  FORECLOSURE  OF  MORTGAGE. 

Now,  on  this  day  of ,  19 — ,  the  same  being  one 

of  the  judicial  days  of  the  regular  ,  19 —  Term  of  this 

court,  this  cause  comes  on  for  trial  in  its  regular  order,  and  the 
plaintiff  appearing  in  person  and  by  its  attorney,  the  defend- 
ants,   , and ,  having  been  three  times  called 

in  open  court  to  except,  demur,  answer  or  plead  to  the  petition 
of  the  plaintiff  herein,  came  not,  but  each  of  them  makes  default ; 

and  it  appearing  to  the  court  that  said  defendant,  ,  had 

been  duly  notified  more  than  days  prior  to  this  date  of 

the  pendency  of  this  action  by  service  of  summons  as  required 

by  law,  and  that  the  defendants,  and  ,  and  each 

of  them,  have  been  duly  notified  of  the  pendency  of  this  action, 

as  is  required  by  law,  by  publication  of  notice  thereof,  for 

consecutive  weeks  in  the  ,  a  newspaper  printed  and  pub- 
lished in  the  city  of  ,  in  said  County,  State  of 

Oklahoma,  and  the  court  having  read  the  pleadings  and 
having  heard  the   evidence   adduced   in   support   of  plaintiff's 


§  1104  merwine's  trial  of  title  to  land.  792 

petition,  and  being  fully  advised  in  the  premises,  finds  that 
all  the  material  allegations  contained  in  plaintiff's  petition 
are  true ;  that  there  is  due  from  said  defendant, ,  to  plain- 
tiff, the  sum  of  $ on  the  note  and  mortgage  sued  on  in  this 

action,  the  sum  of  $ being  the  balance  due  on  the  prin- 
cipal sum  of  $ mentioned  and  set  up  in  said  note  and 

mortgage,  and  the  sum  of  $ being  the  interest  due  thereon, 

and  the  sum  of  $ for  fines  and  penalties,  as  provided  in 

the  by-laws  of  said  association ;  that  said  note  and  mortgage  pro- 
vides that  there  shall  be  added  the  sum  of  $ ,  as  costs  for 

attorney's  fee  in  the  event  of  bringing  suit  thereon;  that  both 
said  note  and  mortgage  expressly  waive  appraisement. 

And  the  court  further  finds  that  the  plaintiff  has  a  lien  on  the 
lands  and  tenements  described  by  virtue  of  the  mortgage  in 
said  petition  set  out,  to  secure  the  payment  of  said  indebtedness, 
interest,  fines,  penalties,  attorney  fee  and  costs,  said  property 
being  described  as  follows:  (Here  specifically  describe  it.) 

It  is  Therefore  considered,  ordered  and  adjudged  by  the 
court,  that  said  plaintiff  have  and  recover  of  said  defendant, 

,  the  sum  of  ,  being  the  aggregate  of  the  amounts 

so  as  aforesaid  found  due  to  said  plaintiff  and  the  costs,  taxed 

at  $ ,  including  the  sum  of  $ ,  attorney  fee,  and  that 

said  judgment  bear  interest  at  the  rate  of per  cent,  per 

annum.    It  is  further  ordered  and  adjudged  by  the  court  that  in 

case  said  defendant,  ,  fails  for  six  months  from  the  date 

of  the  rendition  of  this  judgment  to  pay  plaintiff  said  sum  of 

$ ,  together  with  interest  thereon,  and  costs  of  this  suit, 

including  said  $ ,  attorney  fee,  an  order  of  sale  issue  to 

the  sheriff  of  County,  State  of  Oklahoma,  commanding 

him  to  advertise,  according  to  law,  and  sell,  without  appraise- 
ment, the  lands  and  tenements  in  said  petition  described,  to-wit: 
(Here  describe  it),  with  all  the  improvements  thereon,  and  the 
appurtenances  thereunto  belonging,  and  apply  the  proceeds 
arising  from  said  sale  as  follows : 

Fir.^t.  In  payment  of  the  costs  of  said  sale  and  of  this  action, 
including  $ ,  attorney  fee. 


793  PROCEDURE    TO    FORECIX)SE    MORTGAGE.  §  1105 

Seconc?.    In  payment  to  said  plaintiff  of  said  sum  of  $ , 


the  amount  so  as  aforesaid  found  due  said  plaintiff,  together 
with  interest  thereon. 

Third.  That  the  residue,  if  any  there  be,  he  pay  over  to  the 
clerk  of  the  district  court  of  said  county,  to  be  disposed  of 
according-  to  the  further  orders  of  this  court. 

If  the  amount  to  be  derived  from  said  sale  be  insufiScient  to 
satisfy  the  judgment,  together  wdth  costs,  let  execution  issue 
against  said  defendant,  ,  for  the  remainder  unpaid. 

And  it  is  further  ordered  and  adjudged  by  the  court  that 
from  and  after  the  sale  of  said  lands,  under  and  by  virtue  of 

this  judgment  and  decree,  the  said  defendant,  ,  and  the 

defendants,  and  ,  and  all  persons  claiming  under 

them,  or  any  of  them,  since  the  commencement  of  this  action, 
be,  and  they  are,  forever  barred  and  foreclosed  of,  to  and  from 
any  lien  upon,  right,  title,  interest,  estate  or  equity  of,  in  and 
to  said  lands  and  tenements,  or  any  part  thereof. 

It  is  further  ordered  and  adjudged  that  upon  the  sale  of 
said  real  estate,  and  the  confirmation  thereof  by  the  court,  the 

sheriff  of  said  county  of place  the  purchaser  at  said  sale 

in  peaceable  possession  of  said  premises ;  that  a  writ  of  restitution 
issue  to  that  end  out  of  this  court. 


Judge  of  said  Court. 

Sec.  1105.     The  order  of  sale  directed  from  the  clerk  to  the 
sheriff. 

District  Court  of County,  State  of  Oklahoma. 

The Association,  Plaintiff, 

vs.  No. . 

, and ,  Defendants. 

ORDER    OF    SALE    OF    REAL    ESTATE. 

State  of  Oklahoma, County,  ss. : 

Sheriff  of  County,  Oklahoma,  Greeting: 

Whereas,  on  the  day  of  ,  19—,  the  same  being 

one  of  the  regular  days  of  the ,  19—  Term  of  this  court, 


§  1105  merwine's  trial  of  title  to  land.  794 

in  an  action  then  pending  in  said  court,  wherein  The 


Association  Avas  plaintiff,  and  ,  and  were 

defendants,  the  said  plaintiff  recovered  a  judgment  against  said 

defendant,  ,  in  the  sum  of  $ ,  debt,  with  interest 

thereon,  from  the  date  of  said  judgment  at  the  rate  of 

per  cent,  per  annum,  until  paid,  and  for  an  attorney  fee  of 
$ ,  and  for  costs  of  this  action,  taxed  at  $ ;  and, 

Whereas,  on  said  day,  by  said  court,  it  was  further  consid- 
ered and  ordered  in   said  cause,  that  in  case  said  defendant, 

,  failed  for  six  months  from  said  day  of  , 

19 — ,  to  pay  to  the  plaintiff  said  sum  of  $ ,  Avith  interest 

thereon,  said  $ ,  attorney  fee,  and  the  costs  of  said  action, 

an  order  of  sale  issue  to  the  sheriff  of County,  State  of 

Oklahoma,  commanding  him  to  advertise  and  sell  according  to 
law,  without  appraisement,  the  following  described  lands  and 
tenements,  to-wit :  (Here  specifically  describe  the  same),  with 
all  the  improvements  thereon  and  appurtenances  thereunto  be- 
longing; and. 

Whereas,  the  order  and  judgment  of  said  court  in  said  cause 
require  that  the  proceeds  arising  from  said  sale  should  be  ap- 
plied as  follows,  to-wit : 

First.  In  payment  of  the  costs  of  said  sale  and  of  this  action, 
including  said  $ ,  attorney  fee, 

Second.    In  payment  to  said  plaintiff  of  the  sum  of  $ , 

judgment,  with  interest  thereon. 

Third.  That  the  recidue,  if  any  there  be,  he  pay  over  to  the 
clerk  of  this  court,  to  await  the  further  order  of  this  court. 

Now,  Therefore,  these  are  to  command  you  that  you  proceed 
according  to  law  to  advertise  and  sell,  without  appraisement, 
the  lands  and  tenements  hereinbefore  described,  and  apply  the 
proceeds  arising  from  said  sale  as  directed  by  said  judgment  as 
aforesaid.  You  wall  make  due  return  of  this  order  of  sale  with 
your  proceedings  indorsed  thereon,  showing  the  manner  in  which 
you  have  executed  the  same  within  sixty  days  from  the  date 
hereof. 


795  PROCEDURE   TO   FORECLOSE    MORTGAGE.  §  1106 

In  Witness   Whereof,   I  have  hereunto   set  my  hand   and 
affixed  the  seal  of  said  court  this day  of ,  19 — . 


[Seal.]  Clerk  of  the  District  Court. 


Sec.  1106.    The  legal  notice  of  the  sale  by  the  sheriff  under 
the  decree  of  foreclosure. 

State  of  Oklahoma,  County,  ss. : 

Notice  is  hereby  given  that,  in  pursuance  of  an  order  of  sale 

issued  out  of  the  district  court  of  County,  Oklahoma, 

on  the  day  of ,  19 — ,  in  an  action  wherein  The 

Association,   a    corporation,   was   plaintiff,   and   , 

and ,  were  defendants,  directed  to  me,  the  under- 
signed sheriff  of  County,  Oklahoma,  commanding  me  to 

levy  upon  and  sell,  without  appraisement,  the  following  de- 
scribed premises,  to-wit:  (Here  specifically  describe  real  estate), 
together  with  all  the  improvements  thereon  and  the  appur- 
tenances thereunto  belonging,  to  satisfy  said  judgment  and 
costs,  and  apply  the  proceeds  arising  from  said  sale  as  follows, 
to-wit : 

First.  In  payment  of  the  costs  of  said  action  and  the  sale 
herein,  including  attorney  fee  in  the  sum  of  $ . 

Second.  In  payment  of  the  judgment  of  said  plaintiff.  The 
Association,  in  the  sum  of  $ ,  with  interest  thereon 


at  the  rate  of per  cent,  from  the  date  of  the  rendition  of 

said  judgment. 

Third.  That  the  residue,  if  any  there  be,  be  paid  over  to  the 
clerk  of  said  district  court  of County,  to  await  the  fur- 
ther order  of  the  court. 

I  will,  on  the  day  of ,  19 — ,  at  o'clock, 

—  m.,  of  said  day,  at  the  front  door  of  the  courthouse  in  the  city 

of ,  in  the  county  of ,  offer  for  sale  and  sell  to  the 

highest  bidder  for  cash  said  real  estate  above  described,  or  so 


§§1107,1108     merwine's  trial  of  title  to  land.  796 

much  thereof  as  will  satisfy  said  judgment,  interest,  attorney  fee 
and  costs. 

Witness  my  hand  this day  of ,  19 — . 


Sheriff. 


Attorney  for  Plaintiff. 


Sec.  1107.     The  proof  of  publication  of  notice  of  sale. 

State  of  Oklahoma, County,  ss. : 

,  of  lawful  age,  being  first  duly  sworn,  says  that  he  is 

the  of  the  ,  a  weekly  newspaper,  published  and 

printed  in  the  city  of ,  in County,  Oklahoma,  and 

of  general  circulation  in  said  county  and  State ;  that  said 

has  been  published  for  more  than  fifty-two  consecutive  weeks 
next  prior  to  the  dates  on  which  the  notice  herein  referred  to 
was  published,  and  the  notice  of  which  a  true  copy  is  hereto 
attached,  was  published  in  the  regular  and  entire  edition  of  said 

,  and  not  a  supplement  thereof,  for  weeks,  the 

first  publication  being  on  the  day  of  ,  19 — ,  and 

the  last  of  said  publications  being  on  the day  of , 

19—. . 

Subscribed  and  sworn  to  before  me  this day  of , 

19—.  . 


[Seal.]  Notary  Public. 

'My  commission  expires  . 

Sec.  1108.     Confirmation  of  sale. 

District  Court  of County,  State  op  Oklahoma. 

The Association,  Plaintiff, 

vs.  No.  . 

, and ,  Defendants. 

ORDER  OF  COURT  ACCEPTING  RECEIVER'S  REPORT, 
DISCHARGING   SAID  RECEIVER,  AND   ORDER  CON- 
FIRIMING  SHERIFF'S  SALE  OF  REAL  ESTATE. 
Now,  on  this day  of ,  19 — ,  the  receiver  hereto- 
fore appointed  by  the  court  herein,  having  made  his  report,  and 


797  PROCEDURE   TO   FORECLOSE    MORTGAGE.  §  1109 

the  same  having  been  accepted  by  the  court,  and  the  court 
finding  that  the  same  is  correct  and  proper,  and  that  said  re- 
ceiver has,  in  all  things,  performed  all  and  singular  the  duties 
required  of  him  by  order  of  the  court  herein,  said  receiver 
herein   is    discharged,   and   his   bondsmen   released.     And  this 

cause  coming  on  further  to  be  heard  on  the  said day  of 

,  19 — ,  the  same  being  one  of  the  regular  judicial  days  of 

the  ,  19 —  Term  of  this  court,  comes  the  plaintiff.  The 

Association,    by   its   attorney,   ,    and   moves   the 

court  to  confirm  the  sale  of  real  estate  made  by  the  sheriff  of 

County,  State  of  Oklahoma,  on  the day  of , 

19 — ,  under  an  order  of  sale  issued  out  of  the  office  of  the  clerk 

of  this  court,  on  the day  of ,  19 — ,  said  sale  being 

of  the  following  described  real  estate,  to-wit:  (Here  specifically 
describe  it),  with  all  the  improvements  thereon  and  the  appur- 
tenances thereunto  belonging,  to  satisfy  the  judgment  of  said 
plaintiff,  The  Association. 

And  the  court  having  examined  the  proceedings  of  said  sheriff 
under  said  order  of  sale,  finds  that  the  same  have  been  per- 
formed in  all  respects  in  conformity  to  law,  and  no  exceptions 
having  been  filed  nor  objections  made,  it  is  ordered  and  ad- 
judged by  the  court  that  said  proceedings  be,  and  the  same  are, 
hereby  approved  and  confirmed. 

And  it  is  further  ordered  that  the  sheriff  of  said  county  of 

make  and  execute  to  said  purchaser  at  said  sale  a  good 

and  sufficient  deed  for  said  real  estate  so  sold. 


Judge  of  said  Court. 


Sec.  1109.    Sheriff's  return  of  his  proceedings  under  the  writ. 

State  of  Oklahoma, County,  ss. : 

Received  this  writ  and  order  on  the  day  of  , 


19 — ,  and,  according  to  the  commands  thereof,  I  did  levy  the 
same  upon  the  within  described  lands  directed  to  be  sold,  with- 
out appraisement,  to-wit:  (Here  specifically  describe  the  same), 
with  all  the  improvements  thereon  and  the  appurtenances  there- 


§  1110  merwine's  trial  of  title  to  land.  798 

unto  belonging ;  and  did  cause  public  notice  of  the  time  and  place 
of  the  sale  of  said  lands  and  tenements  to  be  given  for  more  than 

days  before  the  date  of  said  sale,  by  advertisement  in 

the  ,  a  newspaper  printed  and  of  general  circulation  in 

said  county,  that  I  would,  on  the  day  of  ,  19 — , 

offer  said  lands  and  tenements  for  sale  at  the  front  door  of  the 

courthouse  in  said  county  and  State  at  o'clock,  —  m., 

of  said  day,  and  thereupon,  at  the  time  and  place  therein  stated, 

I  sold  said  lands  and  tenements  to ,  for  $ ^  cash  in 

hand,  he  being  the  highest  and  best  bidder  therefor. 


Sheriff. 
I  certify  the  above  to  be  the  times  and  manner  of  executing 
the  foregoing  writ  and  order. 

Witness  my  hand  this day  of ,  19 — . 


Sheriff  of County,  Oklahoma. 

Sec.  1110.    Sheriff's  deed  to  the  purchaser. 

This  Indenture,  made  this  day  of ,  19 — ,  be- 
tween   ,  as  sheriff  of County,  in  the  State  of  Okla- 
homa, party  of  the  first  part,   and  ,   of  the  county  of 

,    State   of   Oklahoma,   party   of   the   second   part,   Wit- 

nesseth  : 

That,  Whereas,  by  virtue  of  an  order  of  sale  issued  out  of 

the  office  and  under  the  seal  of  the  district  court  of  the  

judicial  district  of  the  State  of  Oklahoma,  in  and  for  

County,  attested  the day  of ,  19 — ,  upon  a  judg- 
ment for  the  sum  of  $ ,  with  interest  thereon  at  the  rate 

of per  cent,  per  annum,  from  the day  of , 

19 — ,  and  $ ,  attorney's  fee  and  costs  recovered  in  said 

cause  on  the day  of ,  19 — ,  in  case  number , 

duly  docketed  in  said  court,  said  judgment  being  in  favor  of 
• ,  and  against  ,  and  said  judgment  being  in  words 


799  PROCEDURE  TO  FORECLOSE  MORTGAGE.        §  1110 

and  figures  as  follows,  to-wit:  (Here  copy  order  of  sale  as  found 
in  the  proceedings  herein)  ;  and, 

Whereas,   ,   sheriff   aforesaid,   having   advertised   the 

time  and  place  of  said  sale  in  the ,  a  newspaper,  printed 

and  of  general  circulation  in  said  county,  for  a  period  of 

days  prior  to  the  date  of  said  sale,  and  otherwise  complied  with 
said  order  and  the  provisions  of  the  statutes  of  this  State,  did, 

on  the  day  of  ,  19 — ,  at  the  front  door  of  the 

courthouse  in  said  county,  at o'clock,  —  m.,  of  said  day, 

offer  for  sale  at  public  auction,  the  premises  herein  described, 

and  thereupon,  ,  having  bid  for  said  premises  the  sum 

of  $ ,  said  sum  being  the  highest  and  best  bid  therefor,  the 

said  premises  were  then  and  there  sold  to  said  ;  and, 

"Whereas,  the  court  at  its ,  19 —  Term,  having  examined 

the  proceedings  aforesaid,  under  the  terms  of  said  order  of  sale, 
ami  being  satisfied  that  said  sale  has  been  held  in  all  respects 
in  pursuance  to  said  judgment  and  order  of  sale  and  in  accord- 
ance with  the  provisions  of  the  statute  regulating  such  sales,  did 
order  that  said  sale  be  confirmed,  and  that  said  sheriff  of  said 

county  should  convey  said  premises  to  said  ,   by  good 

and  sufficient  deed. 

Now,  Therefore, ,  as  sheriff  of County,  afore- 
said, party  of  the  first  part,  by  virtue  of  said  writ  and  order, 
and  in  pursuance  of  the  statutes  in  such  case  made  and  pro- 
vided, and  for  and  in  consideration  of  the  sum  of  $ ,  to 

me  in  hand  paid,  by  ,  party  of  the  second  part,  the  re- 
ceipt whereof  is  hereby  acknowledged,  does  grant,  bargain,  sell 
and  convey  unto  said  party  of  the  second  part,  its  successors  and 
assigns  forever,  the  following  described  real  estate,  to-wit:  (Here 
describe  it),  together  with  all  the  privileges  and  appurtenances 
thereunto  belonging. 

To  Have  and  to  Hold  said  premises  with  the  appurtenances, 
to  said  party  of  the  second  part,  its  successors  and  assigns,  as 
fully  and  completely  as  he,  the  said  sheriff,  aforesaid,  by  virtue 
of  said  judgment  and  order  of  sale,  and  confirmation  and  the 


§  1110  merwine's  trial  of  title  to  land.  800 

statutes  of  said  State  may  or  ought  to  grant,  bargain,  sell  and 
convey  the  same. 

In  Witness  Whereof,  the  party  of  the  first  part  has  here- 
unto set  his  hand  the  day  and  year  first  above  written. 


Sheriff  of County,  State  of  Oklahoma. 

State  of  Oklahoma, County,  ss. : 

Before  me,  ,  a  notary  public  in  and  for  said  county 

and  State,  on  this  day  of  ,  19 — ,  personally  ap- 
peared   ,   to  me  known  to  be   the  identical  person  who 

executed  the  within  and  foregoing  instrument,  and  acknowl- 
edged to  me  that  he  executed  the  same  in  his  capacity  therein 
stated,  and  as  his  free  and  voluntary  act  and  deed  for  the  uses 
and  purposes  therein  set  forth. 


[Seal,]  Notary  Public. 

My  commission  expires  . 


CHAPTER   XIX. 
REAL  ACTIONS— STATUTORY. 

1.  Ejectment, 

2.  Occupying  Ci-.aimant's  Law. 

3.  Quiet  Title. 

4.  Partition. 

a.  In  District  Court, 

b.  In  County  Court. 

5.  Evidence  in  Real  Actions. 

1.     EJECTMENT— THE  MODERN  ACTION  TO  RECOVER 
POSSESSION  OF  REAL  ESTATE. 


SECTION 

1111.  The  nature  of  the  old  action 

of  ejectment. 

1112.  Instances    where    ejectment    a 

proper    action. 

1113.  Plaintiff    may    recover    where 

shown  to  be  entitled  to  only 
a  part  of  the  land  in  contro- 
versy. 

1114.  Ejectment  for  breach  of  con- 

dition in  deed. 

1115.  Ejectment    will     not     lie     to 

recover  under  oil  and  gas 
mining  lease  where  lands 
undeveloped. 

1116.  Plaintiff  must  recover  on  the 

strength  of  his  own  title. 

1117.  Possessory    title   will   prevail, 

when. 

1118.  The   action   may  be   equitable 

as  well  as  legal. 

1119.  The   action   to    determine   ad- 

verse interests  in  real  estate 
— The  action  by  one  not  in 
possession. 

1120.  Ejectments — Rents  and  profits 

and  partition  in  one  action. 


SECTION 

1121.  A  joint  tenant  out  of  posses- 

sion may  not  have  partition 
without  joining  a  cause  of 
action  for  possession. 

1122.  Actions  against    executors    or 

administrators. 

1123.  Limitations   of  actions  to  re- 

cover real  estate  sold  by  an 
executor    or    administrator. 

1124.  Actions    by    or    against    exec- 

utors for  the  recovery  of 
real  estate. 

1125.  Duties  of  executor  or  admin- 

istrator as  to  taking  posses- 
sion of  real  estate. 

1126.  The  allegations  of  the  petition 

in  ejectment. 

1127.  The  allegation  of  the  answer 

in  ejectment — ^Possession  ad- 
mitted,  when. 

1128.  The  allegations  of  the  answer 

of  a  cotenant. 

1129.  Recovery  of  rents  and  profits 

by  cotenant. 

1130.  The  general   denial   and  what 

may   be    proved   thereunder. 


801 


§1111 


MERWINE  S   TRIAL   OF    TITLE   TO    LAND. 


802 


SECTION 

113L  Possession  in  ejectment  may 
be  awarded  the  defendant 
who  pleads  by  cross-petition. 

1132.  Judgment    on     disclaimer    of 

defendant. 

1133.  Neither     party     may     contest 

prior    deed,    when. 

1134.  Where   title   is   derived   under 

special  law  such  special  law 
must  be  alleged  and  proved. 

1135.  When  the  words  of  an  instru- 

ment operate  as  a  covenant 
or  mere  words  of  descrip- 
tion. 

1136.  Action    by   an   occupant   of   a 

town  lot  before  legal  title 
has  passed  from  the  govern- 
ment. 

1137.  When  the  defendant  may  not 

deny  that  his  grantor  had 
title. 

1138.  The      statute      of    limitations 

in  actions  concerning  real 
estate. 

1139.  Legal    disability    as    to    real 

property. 

1140.  New    action   may    be   brought 

after   reversal,   when. 

1141.  A  right  barred  by   limitation 

may  neither  be  made  a  cause 
of  action  or  a  defense. 

1142.  Proof   necessary   to    show   ad- 

verse possession  in  eject- 
ment. 

1143.  The   burden   of  proof. 

1144.  Verdict  where  right  of  action 

changes  pending  suit. 


SECTION 

1145.  One    trial   only    in    ejectment. 

1146.  llestitution  by   sheriff — ^Crops 

belong  to  what  party. 

1147.  Judgment    in    ejectment   final 

and  prevents  reassertion  of 
title — Res    ad  judicata. 

1148.  Costs   for    plaintiff   on   recov- 

ery  in   ejectment. 

1149.  Effect  of  conveyances  in  viola- 

tion of  statute  against 
champerty. 

1150.  Procedure  in  ejectment  where 

trial  by  jury  is  waived  and 
the  cause  submitted  to  the 
court  sitting  as  a  jury — The 
form  for  the  petition. 

1151.  Form  for  answer. 

1152.  Motion  for  a  new  trial. 

1153.  Form  for  the  judgment  of  the 

court  and  the  order  over- 
ruling motion  for  new  trial. 

1154.  Form    for    the    petition    when 

damages  are  asked. 

1155.  The  answer  containing  a  gen- 

eral denial. 

1156.  The  verdict  of  the  jury. 

1157.  Instruction  to  the  jury. 

1158.  Motion  for  new  trial. 

1159.  Judgment    sustaining    motion 

for  new  trial. 

1160.  Form  for  judgment  for  plain- 

tiff on  the  verdict. 

1161.  Form  for  judgment  on  verdict 

for   defendant. 

1162.  TJie     writ     of    possession     or 

habere    facias   possessionem. 


Sec.  1111.     The  nature  of  the  old  action  of  ejectment. 

Much  of  the  law  of  ejectment  in  this  State  has  become 
obsolete  on  account  of  statutory  regulations,  and,  conse- 
quently, is  of  no  great  use  to  the  practitioner,  except  that 
some  knowledge  of  the  same  is  necessary  to  a  complete 
understanding  of  some  of  the  terms  used  in  the  present  law. 
We  here  give  a  concise  statement  of  the  nature  of  the  old 


803  REAL    ACTIONS. — STATUTORY.  §  1111 

procedure  to   get  possession  of  real  estate.     It  is  from  the 
pen  of  an  able  jurist,  and  is  as  follows : 

"The  old  English  real  action  was  so  intricate  that  eject- 
ment, an  action  by  which  a  dispossessed  tenant  recovered  his 
possession  for  the  term  of  his  lease  against  the  ejector,  was 
made  to  subserve  its  purpose.  But  the  actual  making  of  a 
lease,  putting  the  lessee  in  possession  by  the  lessor  and  the 
occupant  ejecting  him  by  retaining  possession,  proved  to  be 
too  formal  and  troublesome.  During  the  Protectorate,  Lord 
Chief  Justice  Rolle,  by  fictions  of  law,  obviated  these  diffi- 
culties. It  was  assumed  that  the  claimant  of  the  land  in 
dispute  had  made  a  lease  of  the  premises  to  a  fictitious 
lessor,  generally  named  John  Doe — the  term  being  for  such  a 
number  of  years  as  not  to  expire  during  the  litigation — and 
put  the  lessor,  John  Doe  in  possession,  when  another  fictitious 
personage  named  commonly  Richard  Roe  and  called  the 
casual  ejector,  entered  upon  the  premises  and  ousted  John 
Doe  from  the  possession,  to  recover  which,  for  such  term, 
from  Richard  Roe,  John  Doe,  on  the  demise  of  the  claimant, 
brought  the  action.  The  lands  were  not  specifically  described 
as  required  by  our  code.  A  stream  of  water  could  not  be 
declared  for,  but  was  described  as  land  covered  by  water. 
Notice  of  the  action  was  served  on  the  person  found  in 
possession  of  the  land ;  and,  if  a  tenant,  he  could  notify  his 
landlord  and  either  could  defend  as  tenant  in  possession. 
But  as  the  plaintiff  never  proved  the  lease  to  John  Doe,  the 
entry  and  ouster  by  Richard  Roe,  the  tenant  in  possession, 
to  be  let  in  to  defend,  was  obliged  to  enter  into  the  'consent 
rule,'  by  which  he  admitted  such  fictitious  lease,  entry  and 
ouster,  which  left  for  trial  only  the  question,  who  was  enti- 
tled to  the  possession.  The  legal  title,  as  contradistinguished 
from  the  equity  title,  drew  to  itself  the  legal  right  to  pos- 
session, and  hence,  the  legal  title,  and  the  legal  title  only, 
could  be  tried  in  such  action.  The  plaintiff,  as  now,  had 
to  recover  upon  the  strength  of  his  own  title,  not  on  the 
weakness  of  the  title  of  the   defendant.     Outstanding  legal 


§  1112  MERWINE'S   trial   op   title  to   LiSJ^D.  804 

title  ill  a  third  person  was  a  good  defense.  After  recovery 
of  possession  by  judgment  in  ejectment,  the  real-  or  nominal 
plaintiff  could  sue  the  real  defendant  in  trespass  to  recover 
mesne  profits,  and  for  waste,  which  were,  by  our  statute  of 
limitations,  recoverable  for  four  years  prior  to  the  bringing 
of  the  action."  ^ 

Sec.  1112.    Instances  where  ejectment  a  proper  action. 

The  possession  of  real  estate  may  be  obtained  by  one  who 
recovers  a  judgment  for  breach  of  promise,  and  purchases 
the  real  estate  of  the  judgment  debtor,  who,  pending  the 
proceedings,  fraudulently  conveyed  the  same  for  the  purpose 
of  defeating  the  collection  of  the  judgment ;  ^  by  an  heir  who 
claims  under  a  will  probated  before  a  partition  of  real  estate, 
making  the  heirs,  who  had  conveyed  their  interest  to  another, 
defendants ;  ^  by  a  reversioner,  where  the  life  tenant  forfeits 
the  same  for  nonpayment  of  taxes ;  *  by  a  surviving  hus- 
band, where  it  appears  that  a  deceased  wife  at  the  time  of 
her  death,  owned  real  estate  in  her  own  right  and  no  state 
of  facts  existing,  barring  the  husband's  right  of  curtesy 
therein,  and  the  land  being  in  the  possession  of  another ;  ^ 
by  a  grantor  who  has  conveyed  real  estate  to  a  grantee 
upon  condition  that  a  grist  mill  and  saw  mill  shall  be  erected 
and  maintained  on  the  premises,  the  grantee  failing  to  per- 
form and  remaining  in  possession ;  *'  by  a  mortgagee  against 
a  mortgagor  in  possession,  the  mortgage  having  become 
due  by  condition  broken ;  ''^  by  a  grantee  from  a  grantor, 
the  deed  having  been  delivered  and  the  grantor  is  in  pos- 
session, refusing  to  admit  the  grantee  into  possession ;  ^ 
by  a  vendor  from  a  vendee  in  possession  before  convey- 
ance,   the    vendee    being    clearly    in    default ;  '^    by    a    lawful 

1  2    Yaple's   Code   Trac.    &   Prece-  b  Hall  v.  Hall,  32  0.  S.  184. 
dents,    749.  e  Sperry  v.  Pond,  5  Ohio,  388. 

2  McVeigh  v.  Ritenour,  40  0.  S.  7  Bradfield  v.  Hale,  67  0.  S.  317. 
107.  8  Jones  v.  Timmons,  21  0.  S.  896. 

3  Woodbridge  v.  Banning,  14  0.  S.  »  Coggshall  v.  Marine  Bank,  63 
328.  O.   S.  88. 

■*  McMillan    v.    Robbing,    5    Ohio, 
28. 


805  REAL   ACTIONS. — STATUTORY.  §  1112 

trustee  against  persons  in  possession  claiming  to  be  trus- 
tees ;  ^^  by  a  mortgagee  apon  a  mortgage,  the  real  considera- 
tion for  which  being  an  agreement  not  to  prosecute  the  son 
of  the  defendant  for  theft;  ^^  by  a  landlord  to  recover  posses- 
sion of  leased  premises,  upon  a  forfeiture  of  the  lease  for 
nonpayment  of  rent ;  ^-  and  by  the  owner  of  land  against 
one  in  possession  under  defective  tax  title/^ 

The  action  cannot  be  maintained  by  the  owner  of  land, 
who,  by  his  consent,  agreed  to  give  a  railroad  company  a 
perpetual  right  of  way  through  the  same,  for  the  sum  paid 
to  him,  with  a  provision  in  the  contract  that  the  company 
should  fence  the  same,  and  having  failed  to  construct  it ;  ^* 
by  a  wife  against  a  third  person,  claiming  adverse  possession, 
the  husband  having  a  freehold  in  the  lands,  with  present  right 
of  exclusive  enjoyment,  and  which  has  been  lost  by  adverse 
possession,  the  wife's  reversion  being  postponed  until  the 
termination  of  coverture ;  ^^  and  by  a  mortgagee,  who  claims 
under  a  past  due  and  defectively  executed  mortgage,  the 
certificate  of  acknowledgment  not  showing  by  whom  the  in- 
strument was  acknowledged/" 

A  person  who  holds  possession  of  real  estate,  under  a  claim 
of  ownership,  is  entitled  to  recover  the  same  as  against  one 
who  has  no  right  or  title  to  the  same.^^ 

It  has  been  held  that  a  person  holding  the  duplicate  final 
receipt  of  the  receiver  of  the  United  States  Land  Office  for 


10  Harper   v.    Crawford,    13    Ohio,  to  his  heirs,   subject  to  a   lease   to 
13.  R,  who,  after  remaining  in   posses- 

11  Doe  V.   Roll,   7   Ohio,   71;    Wil-  sion    for    over    eleven    years,    aban- 
liams  V.  Englebright,  73  0.  S.  383.  doncd   it  to  the  heirs.     Afterwards 

12  Adams    v.    Parnell,     1 1    C.    C.  R  executed  a  warranty  deed   to   P, 
567.  who  recorded  the  deed,  and  remained 

13  Wallace  v.  Dayton,  Dayton,  416.  in  possession  for  over  a  year,  wlien 
i-t  Hornbeck  v.  Cincinnati,  20  O.  tS.  she  abandoned  the  premises,  and  the 

81.  heirs      took      peaceable      possession. 

15  Thompson    v.    Green,    4    0.    S.  Held,  that  P  could  not  recover  pos- 

217.  session  of  the  land  from  the  heirs 

IS  Smith  V.  Hunt,  13  Ohio,  2G0.  and  their  tenant.     Pankau  v.  Larze- 

iTHentig  v.  Pipher,  58  Kan.  788,  lere,  52  Pac.   (Kan.  App.)   906. 

51   Pac.   229.     L   died,  leaving  land 


§  1112  merwine's  trial  op  title  to  land.  806 

land  taken  under  the  provisions  of  the  homestead  laws  of  the 
United  States,  can  maintain  an  action  in  the  nature  of  eject- 
ment for  the  possession  of  the  land  described  in  such  final 
reeeipt.^^ 

The  interest  given  by  statute  to  a  wife  in  the  real  estate 
of  her  deceased  husband  is  not  an  inheritance,  and  she  may 
maintain  ejectment  therefor  against  one  in  possession  whose 
title  thereto  was  acquired  by  a  fraudulent  conspiracy  entered 
into  with  the  husband  during  his  lifetime  to  defraud  the 
wife  of  such  interest,  notwithstanding  the  heirs  of  the  hus- 
band could  not  recover  the  real  estate.  It  was  further  held 
in  the  case  from  which  the  foregoing  proposition  was  taken 
that  where  a  husband  and  his  son  have  entered  into  a  con- 
spiracy to  defraud  the  wife  of  her  interest  in  the  real  estate 
of  her  husband  in  Kansas,  and  in  furtherance  of  such  con- 
spiracy the  husband  executes  a  promissory  note  without  con- 
sideration to  a  fictitious  person,  upon  wliich  they  cause  a 
judgment  to  ])e  rendered,  the  land  sold  thereunder,  and  the 
title  thereto  passed  to  the  son,  the  wife  may  maintain  eject- 
ment to  recover  her  interest  in  such  land  against  the  son 
at  any  time  Avithin  the  statutory  period  of  limitations  after 
the  death  of  her  husband.^® 

Again,  where  a  purchaser  moves  upon  the  land  purchased, 
places  a  dwelling  house  thereon,  makes  other  permanent  im- 
provements, and  continues  to  live  thereon,  one  who  furnished 
the  purchase  money  and  holds  a  deed,  absolute  in  form  given 
to  secure  the  same,  cannot  maintain  ejectment  against  the 
purchaser.-" 

A  deed  which  conyeys  a  portion  of  a  quarter  section  of 
land  by  exact  metes  and  bounds,  and  then  contains  the  pro- 
viso:  "Provided,  however,  that  a  strip  of  land  sixty  feet 
wide  on  the  east  and  a  strip  of  land  eighty  feet  wide  on  the 
south,   and   a   strip   of  land   one   hundred   feet   wide    on   the 

isMcChmjrv.  Penny,  12  Okl.  303,  20  Abrams    v.    Abrams,    74    Kan. 

70    Pac.    404.  888,    88    Pac.    70. 

19  McKelvey  v.  McKelvey,  75  Kan. 
325,  89  Pac.  663. 


807  REAL  ACTIONS. — STATUTORY.        §§  1113,  1114 

west  of  said  tract  of  land  is  hereby  reserved  tor  street  pur- 
poses M'hen  said  quarter  sectioi-!  of  land  shall  be  platted," 
creates  a  reservation  in  said  strips,  and  the  fee  passes  by 
the  deed  to  the  grantee.  A  recorded  plat  of  lands  within  the 
city  showing  lots,  blocks,  streets  and  alleys,  when  filed  by 
the  owner  of  the  land  embraced  in  the  plat,  constitutes  such 
dedication  to  public  uses  of  the  streets  shown  on  such  plat 
as  will  prevent  the  holder  of  the  fee  from  maintaining  an 
action  for  possession  against  an  adverse  claimant  to  a  portion 
of  the  street,^^ 

Sec.  1113.    Plaintiff  may  recover  where  shown  to  be  entitled 
to  only  a  part  of  the  land  in  controversy. 

Where  one  brings  an  action  to  recover  a  body  of  land,  and 
the  facts  show  that  he  is  entitled  to  recover  a  portion,  but 
not  all  for  which  he  sued,  he  may  recover  that  portion  which 
the  pleadings  and  facts  show  him  entitled,  as  the  law  does 
not  favor  a  number  of  suits  to  accomplish  a  purpose  when 
the  courts  may  determine  the  rights  involved  without  preju- 
dice."^ 

Sec.  1114.    Ejectment  for  breach  of  condition  in  deed. 

A  deed  of  general  warranty  in  the  usual  form,  conveying 
lands  for  the  expressed  consideration  of  the  sum  of  one 
dollar  and  other  good  and  valuable  considerations,  and  a 
written  contract  executed  at  the  same  time,  by  which  the 
grantee,  in  consideration  of  the  deed,  agrees  to  do  certain 
acts,  and  provides  that,  in  case  of  failure  to  perform  such 
contract,  the  deed  shall  become  void,  and  the  lands  con- 
veyed revert  to  the  grantor,  both  instruments  being  ac- 
knowledged and  recorded  at  the  same  time,  are  to  be  treated 
as  one,  and  construed  together. 

In  a  case  where  the  facts  were  as  just  stated,  the  question 
arose  whether  the  plaintiff  might  maintain  ejectment  to  re- 


21  Edwards  v.  Brusha,  18  Okl.  234,  22  Edwards  v.  Bruslia,  18  Okl.  234, 

90  Pac.  727.  90  Pac.   727. 


§  1115  merwine's  trial  of  title  to  land.  808 

cover  the  land.  It  was  said  by  the  court  in  the  action,  that, 
by  the  common  law,  advantage  of  a  breach  of  a  condition 
subsequent,  working  a  forfeiture  of  an  estate,  could  only  be 
taken  by  formal  entry,  on  the  principle  that  it  required  as 
solemn  an  act  to  defeat  as  to  create  an  estate.  But  in  this 
state  there  is  no  such  thing  as  livery  of  seizin,  in  the  common 
law  sense.  Estates  are  created  by  written  instruments.  De- 
livery of  possession  of  lands  is,  of  course,  a  circumstance  of 
some  weight  in  determining  questions  of  title.  Under  our 
statute,  a  party  having  either  a  legal  or  equitable  title  may 
maintain  an  action  for  the  recovery  of  real  property.  No 
formal  entry  is  necessary  here  as  a  condition  precedent  to 
the  bringing  of  an  action  of  ejectment.  Recent  authorities 
are  to  effect  that  an  ordinary  action  of  ejectment  answers  all 
purposes  of  a  common  law  entry.  The  condition  on  which 
the  grant  was  made  being  lawful,  and  one  which  the  parties 
had  a  right  to  agree  upon,  must  be  enforced  on  the  demand 
of  the  plaintiffs.-'^ 

Sec.  1115.     Ejectment  will  not  lie  to  recover  under  oil  and 
g-as  lease  where  lands  undeveloped. 

Oil  and  gas,  while  in  the  earth,  unlike  solid  minerals,  are 
not  the  subject  of  ownership  distinct  from  the  soil,  and  the 
grant  of  the  oil  and  gas,  therefore,  is  a  grant,  not  of  the 
oil  that  is  in  the  ground,  but  of  such  a  part  as  the  grantee 
may  find,  and  passing  nothing  that  can  be  the  subject  of  an 
ejectment  or  other  real  action.-* 


23  Ritchie  V.  Kansas,  55  Kan.  36,  Wis.  301,  21  N.  W.  254;   Horner  v. 

39  Pac.  718;  Clarke  v.  Town,  81  Mo.  Railway  Co.,  38  Wis.  165;  Wilson  v. 

503;  Jefferyv.  Graham,  61  Tex.  481;  Wilson,    86    Ind.    472;    Railway    v. 

Richter  V.  Richter,  111  Ind.  456;  12  Coleman,    91    Ind.    557;    O'Brien    v. 

N.    E.    360;    Heywood   v.    Ass'n,    11  Wetherell,  14  Kan.  616. 

Pac.    (Cal.)    246;   Railway  v.   Hood,  24  Kalochny      v.      Galbreath,      26 

66   Ind.   580;    Pepin  v.   Prindle,   61  Okla.  772,   110  Pac.  902. 


809  REAL   ACTIONS. — STATUTORY.  §  1116 

Sec.    1116.     Plaintiff   must   recover    on   the   strength   of   his 
own  title. 

The  plaintiff,  in  his  action  to  recover  possession  of  real 
estate,  must  recover  on  the  strength  of  his  own  title,  or 
right  to  the  property;  he  cannot  rely  upon  the  weakness  or 
invalidity  of  the  defendant's  right  or  title.-^ 

Upon  this  subject  it  has  been  said  that  the  plaintiff  in 
ejectment  is  not  required  to  have  the  legal  title,  or  all  the 
title,  or  title  paramount  to  the  title  of  all  others  in  order  to 
enable  him  to  recover.  All  that  is  necessary  in  order  to 
enable  him  to  recover  is  that  he  shall  have  some  kind  of 
estate  in  the  property  in  controversy,  legal  or  equitable, 
and  that  his  title  to  the  property  shall  be  paramount  to  that 
of  the  defendant.^*^ 

A  defendant  in  an  ejectment  action  cannot  plead  an  out- 
standing superior  title  in  a  third  person  to  defeat  the  re- 
covery of  the  plaintiff.-' 

It  has  been  held  in  an  action  by  ejectment  when  the  plain- 
tiff's  testimony    shows    the    defendant   in    possession    of    the 


25  Hearst  v.  Sawyer,  2  Okla.  470,  ejectment  must  recover,  if  he  re- 
37  Pac.  817;  Myers  v.  Mathias,  2  covers  at  all,  on  the  strength  of  his 
Ind.  Ter.  3,  46  S.  W.  178;  Mitchel  own  title.  In  this  State  the  plain- 
V.  Lines,  36  Kan.  378;  O'Brien  v.  tiff  is  not  required  to  have  all  the 
Bugsbee,  46  Kan.  1;  Simpson  v.  title,  or  title  paramount  to  the  title 
Boring,  16  Kan.  248;  State  v.  of  all  others,  in  order  to  enable  him 
Stringfellow,  2  Kan.  259 ;  Omaha  v.  to  recover.  All  that  is  necessary 
Rieter,  66  N.  W.  650;  Chicago  v.  in  order  to  enable  him  to  recover 
Schalkaf,  74  N.  W.  (Xeb.)  826;  is  that  he  shall  have  some  kind  of 
Comstock  V.  Kerwin,  77  X.  W.  estate  in  the  property  in  controversy, 
(Xeb.)  387;  Buck  v.  Gage,  43  X.  W.  legal  or  equitable;  and  that  his 
(Xeb.)     110;     Abbot    v.    Coats,    86  title  to  the  property  shall  be  para- 

X.  W.    (Xeb.)    1058.  mount    to    that    of    the    defendant. 

26  Atchison  v.  Eockwood,  25  Kan.  X'ote  to  Stout  v.  Hyatt,  13  Kan. 
210;  Simpson  v.  Boring,  16  Kan.  176;  citing  Atchison  v.  Eockwood, 
248;  Stout  v.  Hyatt,  13  Kan.  232;  25  Kan.  302;  Atchison  v.  Pracht, 
O'Brien  v.  Wetherall,   14  Kan.  622.  30  Kan.  71,  1  Pac.  319. 

27  Thomas     v.     Eauer,     62     Kan. 
568,   64   Pac.    80.      The   plaintiff   in 


§  1117  merwine's  trial  op  title  to  land.  810 

disputed  land  under  a  claim  of  ownership,  the  plaintiff  must 
then  recover  on  the  superiority  of  his  title,  and,  if  he  relies 
on  a  record  title,  he  must  show  a  regular  chain  of  title  from 
the  Government  or  some  grantor  in  possession,  or  from  the 
common  source  from  which  each  of  the  litigants  claim."^ 

Under  an  identical  statute  of  the  State  of  Nebraska,  the 
Supreme  Court  of  that  State  decided  that  a  devisee  may- 
prosecute  ejectment  for  the  lands  devised  to  him  during  the 
pendency   of  probate  proceedings.-'^ 

Where  a  plaintiff  in  an  action  of  ejectment  establishes  an 
interest  or  title  to  land  paramount  of  that  of  the  defendant, 
the  latter  cannot  avail  himself  of  an  outstanding  title  in  a 
third  party,  although  it  may  be  superior  to  that  of  the 
plaintiff.^" 

Sec.  1117.    Possessory  title  will  prevail,  when. 

Possession  of  real  estate,  with  a  claim  of  ownership,  is 
not  only  evidence  of  title,  but  is  title  itself  in  a  low  degree, 
and  will  descend  to  heirs;  prior  possession  with  such  a  claim 
will,  even  in  ejectment,  prevail  over  a  subsequent  possession 
acquired  by  mere  entry  without  any  lawful  right.^^ 


28  Runcle    v.    Welty,    111    N.    W.  M    that    M    cannot    show,    for    the 
463.  purpose  of  defeating  O's  title,  that 

29  Beer  v.  Plant,  96  N.  W.   (Xeb.)  F's  title  was,   in   fact,   defective  at 
348.  the   time   of   her  death,   or   that,   in 

30  McBride  v.  Steinweden,  72  Kan.  fact,    there   was    a    paramount   out- 
508,   83   Pac.  822.  standing    title    in    a    third    person. 

31  Mooney  v.  Olsen,  21  Kan.  496.  Mooney  v.  Olsen,  21  Kan.  496.  In 
Where  F,  who  was  in  possession  of  ejectment,  proof  of  possession  under 
land  under  color  of  title  claiming  claim  of  title  for  over  fifteen  years 
to  be  the  owner,  died,  and  her  rights  is  sufficient  to  sustain  a  finding  of 
in  the  land  descended  to  the  heir,  title  as  against  a  party  under  no 
0,  and  M  subsequently  took  posses-  disability,  and  claiming  title  only 
sion  of  the  land  without  any  lawful  by  virtue  of  a  recent  and  insufficient 
right,  and  claimed  to  own  the  same,  tax  deed.  Hollenback  v.  Ess,  3il 
held,  that  between  O  and  ^I,  m  an  Kan.  871,  1  Pac.  275;  Utley  v. 
action  in  which  0  is  required  to  Fee,  33  Kan.  690,  7  Pac.  555. 
show  ownership  in  herself  as  against 


811  REAL  ACTIONS. — STATUTORY.         §§  1118-1120 

Sec.  1118.    The  action  may  be  equitable  as  well  as  legal. 

Although  the  facts  in  an  action  for  the  recovery  of  real 
property  under  the  civil  code,  are  not  usually,  and  need  not 
necessarily,  be  set  out  in  the  pleadings  in  detail,  nor  with 
any  degree  of  particularity,  still  every  party  under  such 
pleadings  may  prove  whatever  would  strengthen  his  own 
title,  or  defeat  his  own  title,  in  the  same  manner  and  to  the 
same  extent  that  he  could  do,  if  the  facts  were  set  out 
with  all  the  minuteness  and  substantial  fullness  of  detail, 
with  which  they  are  in  equitable  actions. ^- 

Sec.  1119.     The  action  to  determine  adverse  interests  in  real 
estate — The  action  by  one  not  in  possession. 

It  is  provided  by  statute  that  an  action  may  be  brought 
by  anyone  in  possession  by  himself  or  tenant,  of  real  prop- 
erty, against  any  person  who  claims  an  estate  or  interest 
therein  adverse  to  him  for  the  purpose  of  determining  such 
adverse  estate  or  interest,  and  such  action  may  be  joined 
with  an  action  to  recover  possession  of  such  real  property 
by  any  person  not  in  possession.^^ 

Sec.  1120.    Ejectment — Rents  and  profits  and  partition  in  one 
action. 

The  Supreme  Court  of  Kansas,  early  in  its  history,  set  forth 
the  following  propositions  of  law  on  this  subject : 

"The  following  causes  of  action  may  be  united  in  the 
same  action,  to-wit :  A  cause  of  a<ition  for  the  recovery  of 
real  property;  a  cause  of  action  for  the  value  of  the  rents 
and  profits  of  such  real  property;  and  a  cause  of  action  for 
the  partition  of  such  real  property ;  and  where  said  above 
mentioned  causes  of  action  are  all  united  in  one  petition,  it 
is  not  necessary  that  the  plaintiff  should  allege  in  his  peti- 


32  stout  v.   Hyatt,   13   Kan.   176;       Kan.    248;    Atchison   v.    Rockwood, 
Atchison   v.  Pracht,   30   Kan.   71,   1       25  Kan.  302. 
Pac.    323;    Simpson    v.    Boring,    16  33  Act  approved  January  25,  1911. 


§1120 


merwine's  trial  of  title  to  land. 


812 


tion  that  he  is  in  possession  of  such  real  property,  in  order 
to  maintain  his  cause  of  action  for  partition.  On  the  con- 
trary, he  may  allege  that  he  is  not  in  possession,  and  that 
the  property  is  held  adversely  to  him  by  the  defendant, 
provided,  he  also  alleges  that  he  is  entitled  to  the  immediate 
possession  of  the  property."^* 


34  Scarborough  v.  Smith,  18  Kan. 
400;  see,  also,  Black  v.  Drake,  28 
Kan.  484;  Scantlin  v.  Allison,  32 
Kan.  379,  1  Pac.  618.  Several  com- 
plaints are  made  of  rulings  relating 
to  the  pleadings.  None  of  these  is 
found  to  be  well  taken,  and  only 
one  la  thought  to  require  special 
mention.  It  is  claimed  that,  be- 
cause ejectment  is  a  local  action, 
the  court  of  the  county  to  which 
iiie  change  of  venue  was  taken  had 
no  jurisdiction  to  permit  the  peti- 
tion to  be  so  amended  as  to  make  it 
one  for  the  possession  as  well  as 
for  the  partition  of  the  property. 
Fields  V.  Maloney,  78  Mo.  172,  sup- 
ports this  contention.  This  court, 
however,  has  already  held  in  Hazen 
V.  Webb,  65  Kan.  38,  68  Pac.  1096, 
93  Am.  St.  Rep.  276,  that  "a  court 
to  which  a  cause  is  properly  re- 
moved by  change  of  venue  acquires 
jurisdiction  of  the  cause  and  subject- 
matter  coextensive  with  that  of  the 
court  from  which  the  venue  was 
removed,  and  may  inquire  into  any- 
thing connected  with  tlie  subject- 
matter  of  the  action,  and  render 
any  judgment  which  might  have 
been  rendered  by  the  court  in  which 
the  case  originated."  Here  the  mat- 
ter pertinent  to  ejectment  was  in- 
corporated in  the  petition  by  amend- 
ment expressly  in  order  that  the 
statement  of  a  cause  of  action  for 


partition  might  be  complete,  and 
the  case  is  therefore  fully  within 
tl.e  rule  quoted.  Young  v.  McWil- 
liams,  75  Kan.  243,  89  Pac.  12. 
IMaintifl"  might  have  asked  an  ac- 
counting and  for  a  partition,  and 
at  the  same  time  for  the  quieting 
of  the  title  to  real  estate;  the 
defendant  might  avail  himself  of  the 
same  privilege.  In  llazen  v.  Webb, 
65  Kan.  38,  68  Pac.  1096,  the  power 
of  the  court  in  partition  proceedings 
to  make  all  orders  and  findings  nec- 
essary to  protect  the  interests  and 
rights  of  all  of  the  parties,  is  quite 
fully  discussed.  Plaintiff  may  ask 
and  obtain  possession  of  the  real 
estate,  damages  for  the  rents  and 
use  of  the  same,  and  injunction 
from  committing  irreparable  dam- 
ages to  be  done  to  the  real  estate  by 
an  insolvent  defendant.  Raymond 
V.  Railway,  57  0.  S.  282.  The  cole 
allows  an  action  to  recover  real 
property,  with  or  without  damages 
for  the  withholding  thereof,  the 
rents  and  profits  of  the  same,  and 
the  partition  thereof,  to  be  joined  in 
one  action.  Ohio  Gen.  Code,  Sec. 
11,306.  But  causes  of  action  so 
united,  must  not  require  different 
places  of  trial,  and  except  as  other- 
wise provided,  must  affect  all  the 
parties  to  the  action.  Ohio  Gen. 
Code,    Sec.    11,307. 


813  REAL   ACTIONS. — STATUTORY.  §§  1121-1123 

Sec.  1121.  A  joint  tenant  out  of  possession  may  not  have 
partition  without  joining  a  cause  of  action  for 
possession. 

The  rule  on  this  subject  is,  that  a  joint  tenant,  or  tenant  in 
common,  out  of  possession,  cannot  maintain  an  action  for 
partition,  against  his  cotenants,  who  hold  adversely  to  him, 
without  joining  with  the  demand  for  partition  a  cause  of 
action  for  possession  of  the  land.  The  reason  announced  for 
this  ruling  is  that  it  was  manifestly  clear  that  the  parties 
to  an  action  of  this  kind,  to  avoid  multiplicity  of  suits,  ought 
to  have  their  possessory  rights  determined  in  one  action.^^ 

Sec.  1122.    Actions  against  executors  or  administrators. 

When  there  is  a  deficiency  of  assets  in  the  hands  of  the 
executor  or.  administrator,  and  when  the  decedent  in  his 
lifetime,  has  conveyed  any  real  estate,  or  any  rights  or 
interests  therein,  with  intent  to  defraud  his  creditors,  or  to 
avoid  any  right,  debt,  or  duty  of  any  person,  or  has  so  con- 
veyed such  estate  that  by  law  the  deeds  or  conveyances  are 
void  as  against  creditors,  the  executor  or  administrator  must 
commence  and  prosecute  to  final  judgment  any  proper  action 
for  the  recovery  of  the  same ;  and  may  recover  for  the 
benefit  of  the  creditors  all  such  real  estate  so  fraudulently 
conveyed ;  and  may  also,  for  the  benefit  of  the  creditors,  sue 
and  recover  all  goods,  chattels,  rights  or  credits  which  have 
been  so  conveyed  by  the  decedent  in  his  lifetime,  whatever 
may  have  been  the  manner  of  such  fraudulent  conveyance.^* 

Sec.  1123.    Limitations  of  actions  to  recover  real  estate  sold 
by  an  executor  or  administrator. 
No  action  for  the  recovery  of  any  estate  sold  by  an  ex- 
ecutor   or    administrator,    under    the    provisions    of    chapter 

35  Moorehead  v.  Robinson,  68  Kan.  36  Snyder,     6,355 ;     Wilson,     1699. 

534,    75   Pac.   503 ;    Denton  v.   Fife,       See,  also,  Section  ,  on  the  sub- 

65  Kan.  1 ;   Chandler  v.  Richardson,  ject    of    conveyances    in    fraud    of 

65  Kan.   152,  69   Pac.   168.  creditors. 


§§  1124-1126        merwine's  trial,  of  title  to  land.  814 

eighty-six,  article  eight  (Snyder),  can  be  maintained  by  any 
heir  or  other  person,  claiming  under  decedent,  unless  it  be 
commenced  within  three  years  next  after  the  sale.  An  action 
to  set  aside  the  sale  may  be  instituted  and  maintained  at 
any  time  within  three  years  from  the  discovery  of  the  fraud 
or  other  grounds  upon  which  the  action  is  based.^^ 

Sec.  1124.     Actions  by  or  against  executors  for  the  recovery 
of  real  estate. 

Actions  for  the  recovery  of  any  property,  real  or  personal, 
or  for  the  possession  thereof,  and  all  actions  founded  upon 
contracts,  may  be  maintained  by  and  against  executors  and 
administrators  in  all  cases  and  in  the  same  courts  in  which 
the  same  might  have  been  maintained  by  or  against  their 
respective  testators  and  intestates.^^ 

Sec.  1125.    Duties  of  executor  or  administrator  as  to  taking 
possession  of  real  estate. 

The  executor  or  administrator  must  take  into  his  posses- 
sion all  the  estate  of  the  decedent,  real  and  personal,  except 
the  homestead  and  personal  property  not  assets,  and  collect 
all  debts  due  to  the  decedent  or  to  the  estate.  For  the 
purpose  of  bringing  suits  to  quiet  title  or  for  partition  of 
such  estate,  the  possession  of  the  executors  or  administrators 
is  the  possession  of  the  heirs  or  devisees;  such  possession  by 
the  heirs  or  devisees  is  subject,  however,  to  the  possession 
of  the  executor  or  administrator,  for  the  purpose  of  admin- 
istration, as  provided  in  this  chapter.^^ 

Sec.  1126.    The  allegations  of  the  petition  in  ejectment. 

In  an  action  for  the  recovery  of  real  property,  it  shall  be 
sufficient  if  the  plaintiff  state  in  his  petition,  that  he  has  a 
legal  or  equitable  estate  therein,  and  is  entitled  to  the  pos- 
session thereof,  describing  the  same,  as  required  by  Section 

37  Snyder,  .5..343;  Wilson,  1,687.  39  Snyder,  5,347;   Wilson    1691 

38  Snyder,  5,348;  Wilson,  1,692.  '     ' 


815  REAL   ACTIONS. — STATUTORY.  §  1126 

5667,  Snyder's  Compiled  Laws,  Wilson,  4331,  and  that  the 
defendant  unlawfully  keeps  him  out  of  the  possession.  It 
shall  not  be  necessary  to  state  how  the  plaintiff's  estate  or 
ownership  is  derived.*'' 
The  title  need  not  be  deraigned  with  particularity.* 
It  was  said  that  the  language  of  this  statute  is  too  plain 
to  need  the  support  of  authority  to  show  that  an  equitable 
title  or  estate  in  land  is  a  sufficient  basis  for  an  action  in  the 
nature  of  ejectment,  but,  if  such  were  necessary,  it  can  be 
found  in  abundance  by  consulting  the  decisions  of  the 
Supreme  Court  of  the  State  from  w^hich  the  statute  was 
taken.  "Any  kind  of  an  estate  in  land,  legal  or  equitable,  is 
sufficient  to  enable  the  plaintiff  to  recover  in  an  action  in 
the  nature  of  ejectment,  under  the  provisions  of  the  civil 
code,  as  against  a  party  who  has  no  interest  in  the  property. 
The  question  of  who  shall  recover  in  such  an  action  depends 
entirely  upon  the  question  wdiich  party  has  the  paramount 
right  to  the  property  in  controversy.  Under  the  code  an 
equitable  title  to  real  estate  may  be  sufficient  to  sustain  an 
action  to  recover  the  possession."*^ 

An  equitable  title,  if  the  paramount  one  to  the  land,  is 
sufficient  to  maintain  ejectment  against  the  holder  of  the 
legal  title,  and  proof  of  the  equitable  title,  under  an  allega- 
tion of  ownership  of  a  legal  title,  is  not  a  variance." 


40  Snyder,    6,122;    Wilson,    4,788;  4i  Laughlin    v.    Farriss,    7    Okla. 

Kansas,     5,082      (1901),     identical;  1,     50     Pac.     254;     Hanenkratt     v. 

Nebraska,     1,638,     identical;      Ohio  Hamill,   10   Okla.    1,  61   Pac.   1,050; 

Gen.    Code,    Sec.     11,903,    identical.  Jennings   v.    Brown,    20    Okla.    294, 

The  following  are  the  provisions  of  94  Pac.  557;  Simpson  v.  Boring,  16 

Sec.  5,667,  Snyder's  Compiled  Laws,  Kan.    248;    Ry.    v.    McBratney,    12 

mentioned    in    the    foregoing    para-  Kan.  9;  Duffey  v.  Rafferty,  15  Kan. 

graph:    In  any  action  for  the  recov-  9;     State    v.    Stringfellow,    2    Kan. 

ery   of    real    property,    it    shall    be  263 ;  Ry.  Co.  v.  Pracht,  1  Pac.   (Kan. 

described  with  such  convenient  cer-  Sup.)    319. 

tainty  as  will  enable  an  officer  hold-  42  Pope   v.   Nichols,   59   Pac.   257, 

ing  an  execution  to  identify  it.  61  Kan.  230. 

*  Shellenbarger     v.     Fewell,     124 
Pac.  617    (Okla.). 


§  1127  merwine's  trial  of  title  to  land.  816 

Under  this  code  provision,  a  pleading  is  sufficient  which 
alleges  that  the  defendant  unlawfully  keeps  plaintiff  out  of 
the  possession,  and  an  allegation  that  "defendant  wrongfully 
keeps  the  plaintiff  out  of  possession"  does  not  make  the  peti- 
tion demurrable,  as  the  code  does  not  prescribe  an  exact 
form.*^ 

Again,  it  has  been  held,  that  any  kind  of  an  estate  in 
land,  legal  or  equitable,  is  sufficient  to  enable  the  plaintiff 
to  recover  in  an  action  in  the  nature  of  an  ejectment,  under 
this  code  provision,  as  against  a  party  who  has  no  interest 
in  the  property.** 

Where  the  petition  and  answer,  in  the  action  in  ejectment, 
set  forth  such  facts  and  make  such  denials  only  as  required 
by  Sections  619  and  620  of  the  code  of  civil  procedure  of 
the  State  of  Kansas,  either  party  under  such  pleading  may 
prove  any  fact  which  may  tend  to  strengthen  his  own  title 
or  defeat  that  of  his  adversary,  to  the  same  extent  as  if  the 
facts  were  fully  pleaded,  including  such  as  may  tend  to 
prove  that  the  rights  of  either  party  have  been  barred  by 
any  statute  of  limitations.*^ 

As  between  two  parties,  neither  of  whom  has  a  right  to  the 
possession  of  real  estate,  of  which  one  is  in  possession,  the 
other  cannot  oust  him  therefrom.*^ 

Sec.  1127.  The  allegation  of  the  answer  in  ejectment — Pos- 
session admitted,  when. 
It  shall  be  sufficient  in  such  action,  if  the  defendant,  in 
his  answer,  deny,  generally,  the  title  alleged  in  the  petition, 
or  that  he  withholds  the  possession,  as  the  case  may  be;  but 
if  he  deny  the  title  of  the  plaintiff,  possession  by  the  de- 
fendant,  shall   be   taken    as   admitted.      Where   he    does   not 


43  Rhea  V.  Williams    (Kan.),   103  « Taylor   v.   Danley    (Kan.),    112 
Pac    119.  Pac.    594. 

44  Simpson    v.    Boring,    16    Kan.  46  Robertson   v.    Howard    (Kan.), 
248.  112  Pac.  162. 


817  REAL   ACTIONS. — STATUTORY,  §  1128 

defend  for  the  whole  premises,  the  answer  must  describe  the 
particular  part  of  which  defense  is  made.*^ 

A  defendant,  in  answer  to  a  petition  in  ejectment,  may 
show  by  his  pleading,  that  he  is  the  equitable  owner  of  the 
property,  and  entitled  to  affirmative  relief.^* 

Where,  in  an  action  of  ejectment  for  a  town  lot  by  one 
who  relies  on  a  deed  from  M.,  the  defendant  answers,  al- 
leging a  prior  purchase  of  the  lot  from  the  agents  of  M, 
by  verbal  contract,  on  which  he  paid  part  of  the  purchase 
money  at  the  time,  and  went  into  immediate  possession  of 
the  premises,  and  alleges  that  subsequently,  and  within  the 
period  fixed  for  the  delivery  of  the  deed  and  payment  of  the 
balance  of  the  purchase  money,  he  tendered  such  balance,  and 
also  alleges  that  he  has  made  lasting  and  valuable  improve- 
ments on  the  lot,  held,  that  such  answer  states  a  defense,  and 
it  is  not  error  to  overrule  a  demurrer  thereto  which  avers 
that  such  answer  does  not  state  facts  sufficient  to  constitute 
a  defense.*® 

Sec.  1128.    The  allegations  of  the  answer  of  a  cotenant. 

In  an  action  by  a  tenant  in  common  of  real  property, 
against  a  cotenant,  the  plaintiff  must,  in  addition  to  what 
is  required  in  Section  6122,  Snyder's  Compiled  Laws,  and 
Section  4788,  Wilson's  Statutes,  1903,  state,  in  his  petition, 
that  the  defendant  either  denied  the  plaintiff's  right,  or  did 
some  act  amounting  to  such  denial.* 


47  Snyder,  6,123;  Wilson,  4J89;  Nebraska,  1,640  (1907),  identical; 
Kansas,  5,083  (1901),  identical;  see,  also.  Kirk  v.  Bowling,  20  N.  W. 
Nebraska,  1,639  (1907),  identical.  (Xeb.)     928;    Maltis    v.    Boggs,    28 

48  Sutton  V.  Sutton,  83  N.  W.  X.  W.  (Xeb.)  325;  Delashmet  v. 
(X^eb.)    200.  Parrant,  39  Kan.  548,  18  Pac.  712; 

49  Chandler  v.  Xeil,  46  Kan.  67,  Jackson  v.  Rorke,  98  X.  W.  (Neb.) 
26  Pac.  470.  1,068;    Names  v.  Xames,  67   X.  W. 

•Snyder,    6,124;     Wilson,    4.790;  (Neb.)    751;    Johnson  v.  Hardy,  61 

Kansas,    5,084     (1901),     identical;  X.  W.  (Xeb.)  624. 


§§  1129,  1130         MERWINE^S   TRIAL   OF   TITLE   TO   L.VND.  818 

Sec.  1129.    Recovery  of  rents  and  profits  by  cotenant. 

Where  a  plaintiff,  in  an  action  in  the  nature  of  ejectment, 
alleges  in  his  petition  that  he  has  the  legal  estate  in  the 
real  property  therein  described,  and  is  entitled  to  possession 
of  all  of  the  property,  and  the  proof  shows  that  he  is  a 
tenant  in  common  of  the  property,  and  that  the  defendant 
is  a  cotenant,  and  that  the  defendant  denies  the  plaintiff's 
right,  the  plaintiff  may  recover  against  his  cotenant  any  por- 
tion of  the  land  to  which  the  proof  shows  him  entitled.'^" 

Sec.   1130.    The   general   denial   and  what   may   be   proved 
thereunder. 

In  an  action  for  the  recovery  of  real  property,  it  is  suffi- 
cient in  the  defendant,  to  deny  generally  the  title  alleged 
in  the  petition;  and  under  such  a  denial  he  may  prove  any 
fact  tending  to  show  that  the  plaintiff  has  no  title  or  right 
of  possession;  and  while  a  general  denial  is  sufficient,  the 
defendant  may,  if  he  prefer,  set  out  fully  and  specifically, 
the  facts  constituting  his  defense,  and  then  his  answer  is  to 
be  governed  by  the  ordinary  rules  of  pleading. '^^ 

The  foregoing  rule  of  pleading  has  been  stated  in  another 
way  in  the  following  language : 

''Under  a  general  denial  in  an  action  in  the  nature  of 
ejectment,  the  defendant  may  show,  by  any  legal  evidence 
which  he  may  have,  that  he  is  the  owner  of  the  land  in 
controversy. ' '  ^^ 

In  another  case,  where  the  question  came  up  as  to  what 
evidence  might  be  introduced  under  a  general  denial  in  an 
action  of  ejectment,  it  was  stated,  that,  where  a  general 
denial  is  filed  in  an  action  to  recover  the  possession  of  real 
estate,  it  is  not  error  to  permit  the  defendant  to  show  he 
purchased  the  land  in  controversy,  and  paid  for  it;  that  his 

BoGatton  v.  Tolley,  22  Kan.  472.  b2  Hall  v.  Dodge,  18  Kan.  277. 

51  Wicks  V.  Smith,    18   Kan.   508; 
Bancroft  v.  Chambers,  10  Kan.  275. 


819  REAL   ACTIONS. — STATUTORY,  §  1130 

grantor  made  a  conveyance  to  him  of  certain  real  estate,  and 
intended  by  such  conveyance  to  convey  the  land  in  dispute ; 
and  that  subsequently  possession  was  taken  of  the  land 
under  the  deed,  as  all  of  these  things  tend  to  show  that  the 
defendant,  even  if  he  has  not  the  legal  title  to  the  land,  is 
the  equitable  owner  and  entitled  to  the  possession  thereof.^^ 

Where  a  defendant,  in  an  action  in  the  nature  of  ejectment, 
amends  his  answer  at  the  trial  by  inserting  matter  therein 
w^hich  he  could  prove  under  his  general  denial,  which  he  had 
previously  filed,  the  court  does  not  err  by  refusing  to  strike 
out  such  matter  on  the  grounds  as  set  forth  in  the  plaintiff's 
motion,  that  such  matter  ''changes  substantially  the  de- 
fense;" and  the  defendant  in  such  action  may,  for  the 
purpose  of  defeating  the  plaintiff's  title,  show,  under  a 
general  denial,  a  paramount  title  in  himself,  provided  such 
title  carries  with  it  the  right  of  possession,  w^hether  such 
title  is  legal  or  equitable,  and  whether  the  plaintiff's  title 
is  legal  or  equitable/* 

The  rule  permitting  the  introduction  of  evidence  under  a 
general  denial  in  an  action  of  ejectment,  has  been  stated 
in  another  way.  One  court  says  that  anything  can  be  given 
in  evidence  that  rebuts  the  right  of  the  plaintiff  to  the  pos- 
session of  the  land.^^ 


53  Armstrong  v.  Brownfield,  32  fendant  owns  only  a  fractional 
Kan.   116,  4  Pac.   185.  interest  in  the  property,  and  has  no 

54  Clayton  v.  School  Dist.,  20  information  regarding  the  ownership 
Kan.  256;  Heirs  v.  Dodge,  18  Kan.  of  the  remainder,  the  plaintiff,  upon 
277;  Wicks  v.  Smith,  18  Kan.  508;  proof  of  partial  title,  is  entitled  to 
Armstrong  v.  Brownfield,  32  Kan.  a  proportionate  recovery  and  to  a 
123.  judgment  for  his  costs,  such  a  case 

55  Smith  V.  Hobbs,  49  Pac.  800,  not  being  within  the  contemplation 
31  Pac.  687;  Adam  v.  Johnson,  63  of  the  code  provision  requiring  a 
Kan.  372,  65  Pac.  662;  Hurst  v.  tenant  in  common  in  suing  a  co- 
Sawyer,  2  Okla.  470,  37  Pac.  817.  tenant  for  the  possession  of  real 
Where  a  petition  in  ejectment  al-  estate  to  allege  that  the  defendant 
leges  a  full  title,  and  the  answer  has  denied  his  right.  Young  v. 
includes  a  general  denial,  coupled  Bigger,  73  Kan.  146,  84  Pac.  747. 
with    the    statement    that    the    de- 


§§1131, 1132       merwine's  trial  op  title  to  land.  820 

It  has  been  held  that  a  denial  of  the  very  words  of  a 
petition  without  denying  their  substance  and  effect  tenders 
no  issuc^** 

Sec.  1131.    Possession  in  ejectment  may  be  awarded  the  de- 
fendant who  pleads  by  cross-petition. 

In  an  action  of  ejectment,  where  one  who  is  not  one  of  the 
original  parties  to  the  action,  but  becomes  a  party,  and  by 
leave  of  court  files  a  cross-petition,  showing  that  at  a  period 
prior  to  the  commencement  of  the  suit  the  plaintiffs  were  the 
absolute  owners  of  the  land  in  controversy,  and  at  that  time 
they  sold  and  contracted  in  writing  to  convey  the  land  to 
him  for  $200.00,  and  certain  other  considerations,  and  that 
he  has  tendered  the  cash  payment,  and  is  performing  the 
other  considerations  according  to  the  terms  of  the  contract, 
and  that  plaintiffs  have  refused  to  convey,  the  cross-petition 
contains  a  cause  of  action  against  the  plaintiffs.  And  when, 
in  addition  to  such  matter,  the  cross-petition  alleges  that  the 
defendants  claim  an  interest  in  the  land  in  controversy  under 
a  certain  sheriff's  deed,  and  also  under  a  quitclaim  deed 
from  the  plaintiffs,  and  avers  that  the  sheriff's  deed  under 
which  the  defendants  claim,  is  void,  and  that  their  purchase 
from  the  plaintiffs,  evidenced  by  the  quitclaim  deed,  was  sub- 
sequent to  his  purchase  from  the  plaintiffs,  and  that  the  de- 
fendants had  full  knowledge  of  his  prior  purchase  when  they 
purchased  of  the  plaintiffs,  and  took  their  quitclaim  deed, 
held,  that  such  cross-petition  states  a  cause  of  action  against 
the  defendants.^^ 

Sec.  1132.    Judgment  on  disclaimer  of  defendant. 

In  an  action  of  ejectment  where  the  defendant  files  a  dis- 
claimer of  all  right,  title,  interest  and  possession  of  the  real 
estate,  judgment  should  be  entered  on  the  pleadings  in  favor 
of  the  plaintiff.^^ 

56  Knight  V.   Denman,    90  N.   W.  57  Montgomery  v.  Nulton,  45  Kan. 

(Neb.)   863,  94  N.  W.  (Neb.)   622.  640,  26  Pac.  30. 

58  Ry.  V.  McBratney,  10  Kan.  415. 


821  REAL  ACTIONS. — STATUTORY.  §§  1133-1135 

Sec.  1133.    Neither  party  may  contest  prior  deed,  when. 

In  an  action  to  recover  possession  of  real  estate,  wliich  is 
claimed  by  both  parties  by  a  title  from  a  common  source, 
neither  party  will  be  at  liberty  to  contest  a  deed  from  which 
both  claim.^^ 

Sec.  1134.     Where  title  is  derived  under  special  law  such  spe- 
cial law  must  be  alleged  and  proved. 

The  code  of  this  State  upon  this  subject,  provides  that  in 
pleading  a  private  statute,  or  a  right  derived  therefrom,  it 
shall  be  sufficient  to  refer  to  such  statute  by  its  title,  and 
the  day  of  its  approval,  and  the  court  shall  thereupon  take 
judicial  notice  thereof.®" 

Following  this  law  of  our  code  procedure,  the  Federal 
courts  have  held  that  where  title  is  held  by  anyone  under 
any  of  the  laws  of  the  five  civilized  tribes,  it  was  necessary 
to  allege  and  prove  such  laws.*'^ 

The  United  States  courts  do  not  take  judicial  notice  of  the 
local  laws  of  the  various  tribes  in  the  Indian  Territory,  and 
such  laws  which  allege  a  fact  or  local  usage  and  custom, 
must  be  proved  and  plead  where  they  are  at  variance  with 
the  laws  which  have  been  extended  over  the  territory,  for  the 
guidance  of  the  United  States  courts.*^- 

Sec.  1135.    When  the  words  of  an  instrument  operate  as  a 
covenant  or  mere  words  of  description. 

As  a  general  proposition,  it  may  be  stated  that,  where  the 
number  of  acres  is  referred  to  as  an  estimated  quantity,  coupled 
with  the  words  "more  or  less,"  the  words  operate  as  a  de- 


59  Doe   V.    Dougan,    8    Ohio,    106;  ««  Snyder,  5,6G-1;  Wilson,  4,328. 

Douglass    V.     Scott,     5     Ohio,     194;  ei  Wilson  v.  Owens,  86  Fed.  571. 

Ward   V.    IMcIntosh,    12    0.    S.    231;  62  Wilson   v.   Owen,   86   Fed.   571; 

Presb'y    v.    Pickett.    W.    57;    Long-  Hockett    v.    Alston,    110    Fed.    910; 

worth  V.  Wolfinger,  W.  216;  Devacht  Bruner    v,    Sanders,    26    Okla.    673, 

V.   Newsome,    3    Ohio,   57;    Hart    v.  110  Pac.  730. 
Johnson,  6  Ohio,  87;  Bothe  v.  Rail- 
way, 37  0.  S.  147. 


§§1136,1137       merwine's  trial  of  title  to  land.  822 

scription  of  the  land,  and  not  as  words  of  covenant.  If  the 
statement  of  quantity  of  land  in  any  instrument  of  convey- 
ance be  matter  of  description  only,  the  vendor,  in  the  absence 
of  fraud,  is  not  bound  to  make  good  the  deficiency,  and  the 
vendee  is  not  required  to  surrender  any  excess.  It  is  also 
the  rule  that  when  the  quantity  of  land  is  mentioned  in  a 
deed  as  part  of  the  description,  it  will  be  rejected,  if  it  be 
inconsistent  with  the  actual  area  of  the  premises  as  ascer- 
tained by  known  monuments  or  other  certain  description, 
when  the  tract  is  definitely  described  and  limited."'  But  an 
instrument  purporting  to  convey  land,  in  which  the  descrip- 
tion is  so  vague  and  uncertain  as  to  be  meaningless,  and  there 
is  nothing  in  the  deed  by  which  the  identity  of  the  premises 
can  be  ascertained,  is  void."* 

Sec.  1136.  Action  by  an  occupant  of  a  town  lot  before  legal 
title  has  passed  from  the  Government. 
An  occupant  of  a  town  lot  before  legal  title  has  passed 
from  the  Government,  can  maintain  a  suit  in  ejectment 
against  one  who  is  in  possession  thereof  as  his  tenant;  and 
such  tenant  is  estopped  from  in  any  way  questioning  his  land- 
lord's title.*^^ 

Sec.    1137.    When    the    defendant   may   not    deny   that   his 
grantor  had  title. 

Where  the  defendants  lield  their  entire  title  and  posses- 
sion to  a  certain  piece  of  land  under  the  plaintiff,  and  held 
the  same  upon  the  express  condition  that  no  intoxicating 
liquors  shall  be  sold  upon  the  premises,  which  forfeited  the 
premises  back  to  plaintiff  whenever  such  condition  shall  be 
broken,  the  defendants  are  estopped  when  sued  by  plaintiff 
for  the  recovery  of  the  premises,  on  the  ground  of  breach 
of  such  condition,  from  denying  the  title  conveyed  to  them, 

C3  Armstrong    v.     Brownfield,     32  64  McBride  v.  Steinweden,  72  Kan. 

Kan.    123,    4    Pac.    188;    Ufford    v.       508,  83  Pac.  822. 
Wilkins,  33  la.   110.  cs  Shy  v.  Brochhause,  7  Okla.  35, 

54  Pac.  306.» 


823  REAL    ACTIONS. — STATUTORY.  §  1138 

or  from  the  grantors  of  plaintiff,  was,  when  so  conveyed,  a 
good  title.'^^ 

Sec.  1138.    The  statute  of  limitations  in  actions  concerning 
real  estate. 

Actions  for  the  recovery  of  real  property,  or  for  the  de- 
termination of  any  adverse  right  or  interest  therein,  can 
only  be  brought  within  the  periods  hereinafter  prescribed, 
after  the  cause  of  action  shall  have  accrued,  and  at  no  time 
thereafter : 

1.  An  action  for  the  recovery  of  real  property  sold  on 
execution,  brought  by  the  execution  debtor,  his  heirs,  or  any 
person  claiming  under  him,  by  title  acquired  after  the  date 
of  the  judgment,  within  five  years  after  the  date  of  the 
recording  of  the  deed  made  in  pursuance  of  the  sale. 

2.  An  action  for  the  recovery  of  real  property  sold  by 
executors,  administrators  or  guardians,  upon  an  order  or 
judgment  of  a  court  directing  such  sale,  brought  by  the 
heirs  or  devisees  of  the  deceased  person ;  or  the  ward  or  his 
guardian,  or  any  person  claiming  under  any  or  either  of 
them,  but  the  title  acquired  after  the  date  of  the  judgment 
or  order,  within  five  years  after  the  date  of  the  recording  of 
the  deed  made  in  pursuance  of  the  sale. 

3.  An  action  for  the  recovery  of  real  property  sold  for 
taxes,  within  two  years  after  the  date  of  the  recording  of  the 
tax  deed. 

4.  An  action  for  the  recovery  of  real  property  not  herein- 
before provided  for,  within  fifteen  years. 

5.  An  action  for  the  forcible  entry  and  detention,  or 
forcible  detention  only,  of  real  property,  within  two  years.^'' 

66  O'Brien  v.  Wetherell,  14  Kan.  546;  Best  v.  Frazier,  16  Okla.  523, 
467.  85    Pac.    1,119;    Hockny   v.   McKee, 

67  Snyder,  5,548;  Wilson,  4,314;  12  Okla.  401,  75  Pac.  535;  Coke  v. 
Kansas,  4,444  ( 1901) ,  identical;  see,  Braden,  11  Okla.  291,  67  Pac.  475; 
also,  Lowenstein  v.  Sexton,  18  Okla.  Hebissen  v.  Hatchell,  12  Okla.  29, 
322,  90  Pac.  410;  Riley  v.  Catron,  W  Pac.  888;  St.  Louis  v.  O'Laugh- 
4  I.  T.  376,  69  S.  W.  008;  Bilyen  lin,  49  Fed.  440,  1  C.  C.  A.  311; 
V.    Pilcher,    16    Okla.    228,    S3    Pac.  O'Keefe   v.   Hahrens,    85    Pac.   555; 


§§  1139-1142        merwine's  trial  of  title  to  land.  824 

Sec.  1139.     Legal  disability  as  to  real  property. 

Any  person  entitled  to  bring  an  action  for  the  recovery  of 
real  property,  who  may  be  under  any  legal  disability  when 
the  cause  of  action  accrues,  may  bring  his  action  within  two 
years  after  the  disability  is  removed.'^* 

Sec.  1140.    New  action  may  be  brought  after  reversal,  when. 

If  any  action  be  commenced  within  due  time,  and  a  judg- 
ment thereon  for  the  plaintiff  be  reversed,  or  if  the  plaintiff 
fail  in  such  action  otherwise  than  upon  the  merits,  and  the 
time  limited  for  the  same  shall  have  expired,  the  plaintiff, 
or,  if  he  die,  and  the  cause  of  action  survives,  his  representa- 
tives may  commence  a  new  action  within  one  year  after  the 
reversal  or  failure.*'" 

Sec.  1141.    A  right  barred  by  limitation  may  neither  be  made 
a  cause  of  action  or  a  defense. 

"When  a  right  of  action  is  barred  by  the  provisions  of  any 
statute,  it  shall  be  unavailable  either  as  a  cause  of  action  or 
ground  for  defense.'^" 

Sec.   1142.    Proof  necessary  to  show  adverse  possession  in 
ejectment. 

It  has  been  held  in  order  to  establish  title  to  real  estate 
by  adverse  possession,  there  must  have  been  maintained,  by 
the  party  asserting  title,  an  actual,  continuous,  notorious, 
adverse  and  exclusive  possession  of  the  plaintiff  under  a 
claim  of  ownership  during  the  statutory  period. "^^ 

In  an  action  of  ejectment,  title  by  adverse  possession  may 
be  proved  under  a  general  denial,  and  when  such  title  is  one 


Atchison  v.  Laube,  54  Pac.  11 
Davis  V.  Threlkeld,  51  Pac.  226 
Moran     v.     Moran,     38     Pac.     268 


70  Snyder,    5,557;    Wilson,    4,223; 
Kansas,  4,453    (1901),   identical. 

71  Chicago  V.  Schalkoff,  74  N.  W. 


Anderson  v.  Canter,  63  Pac.  285.  (Neb.)     286;    Lcwin   v.    Hearth,    74 

68  Snyder,    5,549;    Wilson,    4,215;       N.  W.    (Neb.)    274;    Postal  v.  Mar 
Kansas,  4,445    (1901),  identical.  tin,  95  N.  W.    (Neb.)    8. 

69  Snyder,    5,555;    Wilson,    4,221; 
Kansas,  4,451    (1901),   identical. 


825  REAL  ACTIONS. STATUTORY.  §  1143 

relied  on  by  the  defense,  he  is  entitled  to  have  the  jury 
instructed  with  reference  to  the  same,  if  any  competent 
evidence  has  been  introduced  to  support  that  issue,  even 
though  the  evidence  may  be  contradicted  and  be  considered 
insufficient  by  the  jury."- 

In  ejectment,  when  the  only  defense  is  the  statute  of  limi- 
tations, without  a  showing  of  any  claim  or  right,  and  the 
evidence  tends  to  show  that  the  defendant  went  into  posses- 
sion as  the  tenant  of  the  true  owner,  to  whose  rights  the 
plaintiff  had  succeeded,  a  verdict  for  the  plaintiff  will  be 
sustained/^ 

The  purchase,  or  attempted  purchase  of  an  outstanding 
title  by  one  in  adverse  possession  is  not  alone  sufficient  to 
protect  a  vendee  in  the  possession,  or  divest  it  of  its  adverse 
character.  Especially  is  this  so  when  the  attempt  to  pur- 
chase is  not  made  until  after  the  expiration  of  the  statutory 
period.^* 

Sec.  1143.     The  burden  of  proof. 

"Where,  in  an  action  of  ejectment,  the  defendant  in  pos- 
session of  the  real  estate,  the  subject  of  the  action,  relies 
upon  the  statute  of  limitations  as  a  defense,  the  burden  of 
proof  is  upon  him  to  show  that  his  possession  has  been  con- 
tinuous, adverse,  hostile,  and  exclusive  during  the  years  last 
preceding,  required  by  the  statute  of  limitations,  preceding 
the  commencement  of  the  action. '^^ 


'^^Link   V.    Campbell,    104    N.   W.  been  held  by  the  one  in  possession 

(Neb.)    940.  in    his    own    right    and    adverse    to 

73  Nelson  v.  Brushia,  98  X.  W.  the  whole  world,  and  his  attitude 
(Neb.)    1,057.  must    have    been    that   of   one    pro- 

74  Webb  V.  Thiele,  77  N.  W.  claiming  to  all  the  world  that  the 
(Neb.)  65.  The  adverse  possession  land  is  his.  McAlester  v.  Hartzell, 
to  be  a  defense  to  the  action  of  one  60  0.  S.  83. 

who  otherwise  would  be  entitled  to  Note. — The  limitation  to  the  action 

the  possession,  must  be  actual,  ex-  in   Ohio  is  twenty-one  years. 
elusive,    open,    notorious    and    con-  75  village     v.     Reed,     31     N.     W. 

tinuous   for  twenty-one  years   prior  (Neb.)     797.      If    the    heirs    of    an 

to  the  commencement  of  the  action.  estate,  three  in  number,  one  of  whom 

The   claim   to   the   land   must   have  is     a     married    woman,     make     an 


§§1144,1145      merwine's  trial,  op  title  to  land.  826 

As  the  burden  of  proof  is  on  the  defendant  in  ejectment, 
claiming  title  by  adverse  possession,  to  prove  possession  for 
the  full  statutory  period,  any  iudefiniteness  in  such  proof 
must  be  construed  against  him  on  appeal,  the  court  having 
found  against  him.^^ 

Sec.  1144.  Verdict  where  right  of  action  changes  pending 
suit. 
In  an  action  for  the  recovery  of  real  property,  where  the 
plaintiff  shows  a  right  to  recover  at  the  time  the  action  was 
commenced,  but  it  appears  that  his  right  has  terminated 
during  the-  pendency  of  the  action,  the  verdict  and  judgment 
must  be  according  to  the  fact,  and  the  plaintiff  may  recover 
for  withholding  the  property.''"'' 

Sec.  1145.     One  trial  only  in  ejectment. 

In  actions  for  the  recovery  of  real  property,  one  trial  only 
shall  be  granted  as  a  matter  of  right,  but  the  party  against 
whom  the  judgment  is  rendered  may  secure  a  new  trial  in 
the  same  manner  and  for  the  same  reasons  as  new  trials  are 
awarded  in  other  cases,  as  provided  by  the  code  of  civil 
procedure.      No    further    trial    can    be    had    in    such    action, 

amicable  division  of   the  real  prop-  recovery  of  land  so  deeded,  brought 

erty  they   have   inherited,    and,   for  by     the     decen'od     wife's     children 

the  purpose   of  consummating  such  against   her   husband's   grantee,   the 

arrangement,     meet     and     exchange  burden    is    upon    the    plaintiffs    to 

deeds,  to  the  end  that  each  one  shall  establish  the  fact  that  the  deed  was 

receive  from  the  others  a  conveyance  of  the  wife's  separate  property ;  but 

for  a  two-thirds  interest  in  the  land  when  that  fact  appears,  whether  the 

he    owns    in    severalty,    and    after  deed  was  taken  in  the  name  of  her 

the  woman's   death  it  is   discovered  husband  with  the  wife's  consent  or 

that  the  deed  of  her  coheirs  to  her  not,  it  devolves  upon  the  defendant 

share  of  the  land  is  in  the  name  of  to    establish    that    a    gift    was    in- 

her  husband,  the  law  will  presume,  tended,  and  not  a  trust.     Carter  v. 

in    the   absence   of   evidence    to    the  Becker,  69  Kan.  524,  77  Pac.  264. 

contrary,  that  the  husband  took  the  76  Ard    v.    Wilson,    60    Kan.    857, 

deed  for  the  use  and  benefit  of  his  56  Pac.  80. 

wife,   and   not   as   a   gift  from   her.  77  Snyder,  6,125;  Wilson,  4,791. 
In  an  action  of  ejectment  for   the 


827  REAL  ACTIONS. — STATUTORY.         §§  1146,  1147 

unless,  for  good  cause  shown,  a  new  trial  be  granted,  or  the 
judgment  to  reversed,  as  in  other  actions.'^ 

Sec.  1146.  Restitution  by  sheriff— Crops  belong  to  what 
party. 
All  persons  entering  upon  the  possession  of  premises  after 
the  commencement  of  an  action  for  the  recovery  thereof, 
are,  in  the  absence  of  evidence  to  the  contrary,  presumed  to 
have  so  entered  under  the  defendant  therein.  And  where 
the  sheriff,  under  a  writ  of  possession,  returns  that  he  has 
executed  the  writ,  and  has  put  out  a  person,  naming  him, 
who  was  not  a  party  to  the  action,  and  has  put  the  plaintiff 
in  the  writ  in  possession,  it  will  be  presumed,  in  the  absence 
of  evidence  to  the  contrary,  that  he  has  performed  his  duty 
properly,  and  that  the  person  so  removed  held  under  a 
party,  or  some  one  in  privity  with  a  party,  to  the  action, 
and  was  therefore  bound  by  the  judgment.  Crops  immature 
and  growing  on  real  estate  when  the  successful  party  in  an 
action  of  ejectment  is  placed  in  possession  of  the  premises, 
are  part  of  the  real  estate;  and,  in  the  absence  of  proof 
showing  any  right  of  severance,  belong  to  such  successful 
party.^^ 

Sec.  1147.  Judgment  in  ejectment  final  and  prevents  re- 
assertion  of  title — Res  ad  judicata. 
A  general  finding  and  judgment  in  an  action  of  ejectment, 
concludes  a  party  on  the  question  of  title,  and  prevents  him 
from  thereafter  asserting  a  claim  of  title,  from  whatever 
source  is  comes,  which  he  had  pending  the  action  and  prior 
to  the  judgment.  Such  a  judgment  would  be  res  adjudicata 
not  only  as  to  matters  actually  considered  and  determined, 
but  also  as  to  every  other  matter  which  the  parties  might 
have  litigated  in  the  case,  and  which  they  might  have  had 
decided.     The  law  does  not  favor  a  multiplicity  of  suits,  and, 

78  Snyder,   6,126   and  6,127;    Wil-  79  Harrod  v.  Burke,  76  Kan.  906, 

son,  4,793.  92  Pac.   1,128. 


§§  1148, 1149        merwine's  trial  of  title  to  land.  828 

where  all  matters  in  controversy  between  parties  as  to  the 
title  or  possession  of  real  estate  might  be  fairly  ended  in  one 
action,  the  law  requires  that  this  could  be  done.  Parties 
cannot  try  title  to  real  estate  by  piecemeal,  in  separate  and 
independent  actions,  upon  separate  deeds  or  chains  of  title, 
when  they  have  in  their  possession  during  the  trial  separate 
and  different  deeds.^" 

The  holders  of  legal  title  to  land  are  bound  by  judgments 
rendered  in  actions  of  ejectment  brought  against  their  ten- 
ants of  which  they  are  notified  and  which  they  defend,  and 
writs  of  ouster  may  be  awarded  against  them  and  against 
all  persons  in  possession  of  the  land  claiming  under  them.*^ 

Sec.  1148.     Costs  for  plaintiff  on  recovery  in  ejectment. 

The  plaintiff  in  an  action  of  ejectment,  who  obtains  judg- 
ment in  the  trial  court  for  possession,  is  also  entitled  to  judg- 
ment for  his  costs.^^ 

Sec.  1149.  Effect  of  conveyances  in  violation  of  statute 
against  champerty. 
It  is  provided  by  the  criminal  statutes  of  this  State  that 
every  person  who  buys  or  sells,  or  in  any  manner  procures, 
or  makes  or  takes  any  promise  or  covenant  to  convey  any 
pretended  right  or  title  to  any  lands  or  tenements,  unless  the 
grantor  thereof,  or  the  person  making  such  promise  or 
covenant,  has  been  in  possession,  or  he  and  those  by  whom 
he  claims  have  been  in  possession  of  the  same,  or  of  the 
reversion  or  remainder  thereof,  or  have  taken  the  rents  and 
profits  thereof  for  the  space  of  one  year  before  such  grant, 
conveyance,  sale,  promise  or  covenant  made,  is  guilty  of  a 
misdemeanor.^^ 

80  Peterson    v.    Albach,    51    Kan.  82  Maharry  v.    Eatman     116    Pac. 
150,  32  Pac.  917.                                          935,    29    Okla.    46;    see,    also,    Sec. 

81  Crane  v.  Cameron,  71  Kan.  880,       6,115,  Snyder's  Statutes. 

81  Pac.  480.  83  Snyder,  2,215;   Wilson,  3,112. 


829  REAL  ACTIONS. — STATUTORY.  §  1150 

It  has  been  held  by  both  the  State  and  Federal  courts  that 
anyone  taking  a  deed  of  conveyance  in  violation  of  this 
statute,  even  though  said  deed  would  give  them  good  title 
to  the  real  estate,  cannot  maintain  an  action  to  recover  the 
possession  thereof.®* 

Sec.  1150.  The  procedure  in  ejectment  where  trial  by  jury- 
is  waived  and  the  cause  submitted  to  the  court 
sitting  as  a  jury — The  form  for  the  petition. 

District  Court  of County,  State  op  Oklahoma. 

,  Plaintiff, 

vs.  No.  . 

and ,  Defendants. 

PETITION. 

1.  Comes  now  the  plaintiff,  ,  and,  for  a  first  cause  of 

action  against  the  defendants,  and  ,  alleges  and 

states  that  she  has  the  legal  estate  in  fee  simple,  and  the  equi- 
table estate  in  and  to  the  following  described  real  estate,  to-wit : 

(Here  describe  it),  and  said  plaintiff,  ,  is  entitled  to  the 

immediate  possession  of  the  same. 

Plaintiff  further  alleges  that  said  defendants  are  in  the  law- 
ful possession  of  said  premises,  and  are  unlawfully  withholding 
the  possession  thereof  from  plaintiff,  and  deny  plaintiff's  right 
and  title  to  the  possession  of  the  same. 

2.  For  a  further  and  second  cause  of  action  against  the  de- 
fendants,    and  ,  the  plaintiff  hereby  refers  to  her 

first  cause  of  action  and  here  makes  the  allegations  of  her  first 
cause  of  action  a  part  of  her  second  cause  of  action  as  fully  as 
if  the  same  were  herein  set  out  in  full,  and  plaintiff  alleges  that 


84  Houston   V.    Scott    (Okla.),    94  26,     1911,     Circuit     Court    of     the 

Pac.      412-      Powers      v.      Vandyke  United  States  for  the  Eastern  Dis- 

(Okla.),  ill  Pac.  939;  Bell  v.  Cook,  trict  of   Oklahoma,   sitting  at  Mus- 

decided     by     Pollock,     J.,     October  kogee. 


§  1151  ijekwine's  trial  of  title  to  land.  830 

said  defendants  have  so  unlawfully  kept  plaintiff  out  of  pos- 
session of  said  real  estate  for  the  past  year,  and  collected  and 
used  for  their  own  benefit,  during  said  time,  the  rents  and 
profits  arising  from  said  lands  or  real  estate,  amounting  to  the 

sum  of  $ . 

"Wherefore,   premises   considered,   plaintiff  prays    judgment 

for  the  possession  of  said  premises,  for  $ ,  for  rents  and 

profits,  and  for  all  costs  of  this  action,  and  for  all  proper  relief. 


Attorney  for  Plaintiff. 

State  of  Oklahoma, County,  ss. : 

,  being  by  me  first  duly  sworn,  on  her  oath,  says  that 

she  is  the  plaintiff  in  the  above  action ;  that  she  has  read  the 
above  and  foregoing  petition,  and  knows  the  contents  thereof 
and  that  the  facts  therein  stated  are  true. 


Subscribed  and  sworn  to  before  me  this day  of 

19—. . 


[Seal.]  Notary  Public. 

My  commission  expires  . 

Sec.  1151.    Form  of  answer. 

District  Court  of County,  State  op  Oklahoma. 

,  Plaintiff, 


vs.  No. 
and ,  Defendants. 


ANSWER  OF  DEFENDANT 


Comes  now  the  defendant,  ,  and,  for  her  separate  an- 
swer to  the  petition  of  the  plaintiff  herein,  denies  each  and  every 
allegation  in  said  petition  contained. 

Wherefore,  she  prays  judgment  that  plaintiff  take  nothing 
by  this  suit,  and  that  she  be  discharged  hence  with  her  reason- 
able costs.  

Attorney  for  Defendant. 


831  REAL   ACTIONS. — STATUTORY.  §§1152,1153 

Sec.  1152.    Motion  for  a  new  trial. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No.  . 

and ,  Defendants. 


MOTION    FOR    NEW    TRIAL. 
Comes  now  the  plaintiff  herein,  and  moves  the  court  to  vacate 
and  set  aside  the  verdict  and  judgment  of  the  court  rendered 

herein  on  the  day  of  ,  19—,  and  to  grant  a  new 

trial  for  the  following  causes,  which  affect  materially  the  sub- 
stantial rights  of  the  plaintiff. 

1.  P>ror  of  the  court  in  permitting  defendants  to  offer  tes- 
timony over  the  objection  of  plaintiff. 

2.  That  the  verdict  and  decision  of  the  court  herein,  is  not 
sustained  by  sufficient  evidence. 

3.  That  the  verdict  and  decision  of  the  court  herein  is  con- 
trary to  laAv. 

4.  Error  of  law  occurring  at  the  trial  and  excepted  to  by 
plaintiff. 

5.  For  other  errors  of  law  apparent  upon  the  face  of  the 
record  and  excepted  to  by  plaintiff. 


Attorneys  for  Plaintiff. 


Sec.  1153.     Form  for  the  judgment  of  the  court  and  the  order 
overruling  motion  for  new  trial. 
District  Court  op County,  State  op  Oklahoma. 

,  Plaintiff, 

vs.  No.  . 


and ,  Defendants. 


JUDGMENT  AND  ORDER  OF  COURT. 

On  this day  of ,  19—,  the  same  being  a  day  of 

the  regular ,  19 —  Term  of  this  court,  the  above  entitled 

cause  came  on  for  hearing,  both  parties  appearing  in  person, 


§  1154  merwine's  trial  of  title  to  land.  832 

and  by  their  respective  attorneys,  upon  the  petition  of  the 
plaintiff,  and  the  answer  of  defendants,  and  the  evidence  offered 
before  the  court,  both  parties  waiving  a  jury,  and  the  court, 
after  hearing  the  evidence  and  being  fully  advised  in  the  prem- 
ises, finds  the  issues  of  fact  and  law  arising  thereon,  against 
the  plaintiff  and  in  favor  of  the  defendants,  and  that  the  de- 
fendants are  the  owners  and  in  possession  of  the  following 
described  real  estate,  to-wit :  (Here  describe  same),  the  same 
being  the  land  in  controversy  in  this  case,  and  further  finds  that 
the  plaintiff  has  no  right,  title  or  interest  in  or  to  said  lands. 

It  is  Therefore  ordered,  considered  and  adjudged  by  the 
court  that  the  defendants  are  the  owners  of  the  lands  herein- 
before described,  and  that  plaintiff  has  no  right,  title  or  interest 
in  the  same;  that  plaintiff  take  nothing  by  this  suit;  that  de- 
fendants have  and  recover  of  and  from  the  plaintiff  all  their 
costs  in  and  about  this  suit  laid  out  and  expended,  for  which 
execution  may  issue. 

Whereupon,  the  plaintiff  filed  her  motion  for  a  new  trial, 
which,  coming  on  for  hearing,  was,  by  the  court,  overruled,  to 
which  ruling  of  the  court  plaintiff  excepts,  and  prays  an  appeal 
to   the   Supreme    Court    of   the    State    of   Oklahoma,    which   is 

granted,  and  for  cause  shown,  plaintiff  is  given  days  in 

which  to  prepare  and  serve  a  case  made;  defendants  are  given 

clays  thereafter  in  which  to  suggest  amendments,  case 

made  is  to  be  settled  on  days'  written  notice  by  either 

party.  . ^ 

Judge  of  the  District  Court  of  said  County. 


Sec.  1154.    Form  for  the  petition  when  damages  are  asked. 

District  Court  of County,  State  of  Oklahoma. 

■ — ,  Plaintiff, 

vs.  No.  

,  Defendant. 


833  REAL,   ACTIONS. — STATUTORY.  §  1154 

PETITION. 

Comes  now  the  plaintiff,  and,  for  his  cause  of  action  herein, 
alleges  and  states : 

1.  First  Cause  of  Action. — That  he  has  the  legal  estate  in 
and  is  entitled  to  the  possession  of  the  following  described  real 
estate,  to-wit :  (Here  specifically  describe  same),  and  that  said 
defendant  unlawfully  keeps  plaintiff  out  of  possession  of  said 
real  estate,  and  has  so  unlawfully  kept  him  out  of  said  posses- 
sion continuously  since  the day  of ,  19 — ,  and  that 

said  defendant  is  in  the  unlawful  possession  of  said  real  estate, 
and  is  unlawfully  withholding  the  possession  thereof  from  plain- 
tiff, and  denies  plaintiff's  right  and  title  to  the  possession  of  the 
same. 

2.  Second  Cause  of  Action. — That  the  plaintiff  herein  hereby 
refers  to  his  first  cause  of  action  herein,  and  hereby  makes  the 
allegations  thereof  a  part  of  this,  his  second  cause  of  action,  as 
fully  as  if  the  same  were  herein  set  out  in  full,  and  plaintiff 
alleges  that  said  defendant  has  so  unlawfully  kept  plaintiff  out 
of  possession  of  said  premises  for  the  past  year,  and  collected 
and  used  for  his  own  benefit  during  said  time,  the  rents  and 
profits  arising  from  said  real  estate,  amounting  to  the  sum  of 


Wherefore,  the  premises  considered,  plaintiff  prays  judgment 

for  the  possession  of  said  real  estate,  and  for  $ damages 

for  rents  and  profits  thereof,  and  for  all  costs  of  this  action  and 

for  all  proper  relief.  , 

Attorneys  for  Plaintiff. 
State  of  Oklahoma,  County,  ss. : 

,  being  by  me  first  duly  sworn,  says  that  he  is  the  plain- 
tiff' in  the  above  action,  and  that  the  facts  stated  and  allegations 
contained  in  the  foregoing  petition  are  true. 


Sworn  to  before  me  and  subscribed  in  my  presence  this 
day  of  ,  19 — .  


My  commission  expires .  Notary  Puhlic. 


§§1155,1156     merwine's  trial  of  title  to  land.  834 

Sec.  1155.     The  answer  containing  a  general  denial. 

District  Court  of County,  State  of  Oklahoma. 


-,  Plaintiff, 


vs. 

,  Defendant. 


No. 


ANSWER. 

For  answer  to  the  petition  of  the  plaintiff  herein,  the  defend- 
ant denies  that  he  withholds  possession  of  said  premises  in  the 
petition  described  from  the  plaintiff,  or  any  part  thereof. 

Wherefore,  he  asks  for  judgment  against  the  plaintiff;  that 
he  go  hence  without  day,  and  that  he  recover  his  costs  herein. 


Attorneys  for  Defendant. 

Sec.  1156.    The  verdict  of  the  jury. 

District  Court  of  County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No.  

,  Defendant. 


Now,  on  this  day  of  ,  19—,  come  the  parties 

herein  in  person  and  by  their  attorneys,  and  both  sides  having 
announced  ready  for  trial,  a  jury  is  called  to  try  this  cause,  and 

come  as  follows  : , , , , , > 

,  ,  ,  ,  and  ,  who,  hav- 


ing been  duly  impaneled  and  sworn  to  try  this  cause,  and  having 
heard  all  the  evidence  introduced  by  the  plaintiff  and  defendant, 
received  the  instructions  of  the  court,  and  heard  the  argument 
of  counsel,  now  retire  to  their  jury  room  in  charge  of  a  sworn 
bailiff,  to  consider  their  verdict.  And  afterward,  said  jury 
return  into  open  court  the  following  verdict: 

District  Court,  County,  State  of  Oklahoma. 

. ,  Plaintiff f 

vs.  No.  . 

,  Defendant. 


835  REAL  ACTIONS. — STATUTORY.  §  1157 

VERDICT. 

"We,  the  jury  in  tlie  above  entitled  action,  duly  impaneled  and 
sworn,  upon  our  oaths,  find  the  issues  in  favor  of  the  plaintiff, 
and  that  he  is  entitled  to  $ damages. 


Foreman. 

Sec.  1157.    Instructions  to  the  jury. 

District  Court,  County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No.  


■ ,  Defendant. 

CHARGE    OF    THE    COURT. 

Gentlemen  of  the  Jury: 

The  plaintiff  brings  suit  to  recover  possession  of  the  following 
described  real  estate,  to-wit:  (Here  specifically  describe  same), 
and  damages  for  the  detention  thereof.  (Here  state  the  issues 
raised  by  the  pleadings  and  the  evidence.) 

You  are  the  sole  judges  of  the  facts  proven,  and  of  the  credi- 
bility of  the  witnesses,  and  the  court  instructs  you  as  to  the 
law  of  the  case  as  follows: 

The  burden  rests  upon  the  plaintiff  to  prove  to  your  satisfac- 
tion, by  a  preponderance  of  the  evidence,  that  he  bought  the 

land  of  ,  as  alleged  in  his  petition  herein,  and  on  the 

terms  as  stated  therein.  And  by  the  preponderance  of  the  evi- 
dence is  meant  the  greater  weight  of  the  evidence,  and  not, 
necessarily,  the  greater  number  of  witnesses  who  testified  on 
one  side  or  the  other.  (Here  give  further  instructions  applicable 
to  the  case  in  hand.) 

Nine  of  your  number  concurring,  may  return  a  verdict  for 
either  plaintiff  or  defendant.  If  nine,  or  less  than  twelve  agree, 
these  nine  must  sign  the  verdict.  If  your  verdict  is  unanimous, 
have  the  same  signed  by  your  foreman,  and  return  with  it  into 

court. , 

Judge  of  said  Court. 


§§1158,1159        merwine's  trial  of  title  to  land.  836 

Sec.  1153.    Motion  for  new  trial. 

District  Court,  County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No.  . 


-,  Defendant. 


MOTION   FOK   NEW  TRIAL. 

Comes  DOW  the  defendant  and  moves  the  court  to  vacate  and 
set  aside  the  verdict  and  judgment  herein  and  grant  a  new  trial 
for  the  following  causes,  which  affect  materially  the  substantial 
rights  of  the  defendant : 

1.  Said  verdict  and  judgment  are  not  sustained  by  sufficient 
evidence. 

2.  Said  verdict  is  contrary  to  law. 

3.  Errors  of  law  occurring  at  the  trial  and  excepted  to  by 
defendant. 

4.  Error  of  the  court  in  giving  the  following  instructions: 
(Here  state  same.) 

5.  Error  of  the  court  in  refusing  to  give  the  following  writ- 
ten instructions  at  the  request  of  the  defendant:  (Here  give 
same.) , 

Attorney  for  Defendant. 


Sec.  1159.    Judgment  sustaining  motion  for  new  trial. 

District  Court,  County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No. 
,  Defendant. 


JUDGMENT    SUSTAINING   MOTION    FOR    NEW    TRIAL. 
This  cause  coming  on  for  hearing  this day  of , 


19 — ,  upon  the  motion  for  new  trial  heretofore  filed  herein  by 


837  REAL.  ACTIONS. — STATUTORY.  §  1160 

the  defendant,  plaintiff  appearing  by  his  attorneys, ,  and 

the  defendant,  by  his  attorney,  ,  the  same  being  heard, 

and  the  court  being  fully  advised  in  the  premises,  upon  due  con- 
sideration thereof,  the  court  finds  said  motion  to  be  well  taken, 
and  sustains  the  same  and  grants  a  new  trial. 


Judge  of  said  District  Court. 


Sec.  1160.     Form  for  judgment  for  plaintiff  on  the  verdict. 

District  Court,  County,  State  of  OkllIHOMa. 


,  Plaintiff, 

vs. 
,  Defendant. 


No. 


JUDGMENT. 

This  day  came  the  parties  by  their  attorneys,  and  also  came 
a  jury,  to-wit : ,  ,  — 


, ,  ,  and ,  who,  being 

impaneled,   sworn   and   charged   to   speak  the   truth   upon   the 
issues  joined  between  the  parties,  upon  their  oaths  do  say  that 

tiie  said is  guilty  of  unlawfully  keeping  said out 

of  possession  of  said  real  estate,  described  as  follows,   to-wit: 
(Here  specifically  describe  same),  and  they  assess  the  damage  of 

the  said  plaintiff,  by  reason  thereof,  in  the  sum  of  $ ,  the 

value  of  the  rents  and  profits  thereof  during  said  withholding 
of  the  possession  thereof. 

It  is  Therefore  considered  that  the  said  plaintiff  recover 
judgment  against  said  defendant  for  the  possession  of  said  real 
estate  found  by  said  verdict  to  be  so  wrongfully  in  the  posses- 
sion of  said  defendant,  and  also  the  sum  of  $ ,  his  said 

damages,  by  the  jurors  fixed  and  assessed,  together  with  his  costs 

herein  expended,  taxed  at  $ . 

~"  ) 

Judge  of  said  Court. 


§§  1161, 1162       merwine's  trial  of  title  to  land.  838 

Sec.  1161.     Form  for  judgment  on  verdict  for  defendant. 

District  Court,  County,  State  op  Oklahoma. 

,  Plaintiff, 


vs.  No. 
,  Defendant. 


JUDOI\rENT  FOR   DEFENDANT. 

This  day  came  the  parties  by  their  attorneys,  and  thereupon 
came  a  jury,  to-wit:  , ,  ,  ^  

'  J  ,  ,  ,  ,   and   , 


who,  being  impaneled  and  sworn  as  a  jury,  to  speak  the  truth 
upon  the  issues  joined  between  the  parties  upon  their  oaths, 

do  say  that  the  said  is  not  guilty,  in  manner  and  form, 

as  said  plaintiff  in  his  petition  has  complained  against  him. 

Tt  is  Therefore  considered  that  said  defendant  go  hence 
without  day  and  recover  of  said  plaintiff  his  costs  herein  ex- 
pended, taxed  at  $ . 


Judge  of  said  Court. 

Sec.  1162.    The  writ  of  possession  or  habere  facias  posses- 
sionem. 

State  of  Oklahoma,  County,  ss. : 

To  the  Sheriff  of  said  County,  Greeting: 

Where.^s,  ,  on  the  day  of  ,  19—  in  our 

district  court  within  and  for County,  by  a  judgment  of 

said  court,  recovered  against  ,  a  judgment  for  the  pos- 
session  of   the    following   described    real    estate,    to-wit:    (Here 

specifically  describe  same),  together  with  $ damages  and 

$ costs. 

Therefore,  we  command  you,  that,  without  delay,  you  cause 

the  said to  have  possession  of  said  real  estate,  with  the 

appurtenances,   from  the  said  ,  or  any  person  who  has 

come  m  under  him  pending  this  suit,  and  in  what  manner  you 
shall  have   executed  this,   our  command,  in 'this  behalf,   make 


839  REAL   ACTIONS. — STATUTORY.  §  1162 

appear  to  our  said  district  court,  on  or  before  the day  of 

,  19-. 

We  also  command  you  that  of  the  goods  and  chattels,  and  for 
want   thereof,   then,    of  the  lands  and  tenements   of   the   said 

,  in  your  bailiwick,  you  cause  to  be  made  the  sum  of 

$ damages,    and   $ costs    of    suit,   with    interest 

thereon,  from  the  day  of  ,  19 — ,  which  the  said 

,  on  the  day  and  year  first  aforesaid,  by  the  judgment  of 

the  same  court,  recovered  against  the  said  ,  whereof  the 

said  is  also  convicted,  as  appears  to  us,  of  record,  and 

have  you  said  moneys  before  our  said  district  court  aforesaid, 
on  the day  of ,  19 — ,  to  render,  etc. 

And  have  you  then  and  there  this  writ. 

"Witness ,  clerk  of  our  said  district  court,  at  , 

this day  of ,  19 — . 


Clerk  of  said  District  Court. 
By , 


Deputy. 


§1163 


merwine's  trial  of  title  to  land. 


840 


2.     THE  OCCUPYING  CLAIMANT'S   LAW. 


SECTION 

1163.  Preliminary  statement. 

1164.  In   what  cases   the   occupying 

claimant  may  not  be  evicted 
until  improvements  are  paid 
for. 
xl65.  Occupant  must  have  "color  of 
title" — ^Definition    of   term. 

1166.  Instances  where  occupant  not 

allowed  for  improvements. 

1167.  Improvements    for    which    the 

occupant   may  be  paid. 

1168.  The    right    to    set    off    rents 

against     the    value    of    im- 
provements. 
!*169.  Tax  title   which   will   support 
tlie  claim  for  improvements. 

1170.  Construction  of  the  occupying 

claimant  statutes. 

1171.  Occupying     claimant's     law — ■ 

Specific  findings  of  the 
court — Three  disinterested 
freeholders,  appraisement — • 
Jury  impaneled,  when. 


SECTION 

1172.  Judgment  for  value  of  improve- 

ments— Execution  thereon. 

1173.  Value  between   rents  and   im- 

provements   before    writ    of 
ouster  issue — Appeal. 

1174.  Writ    of    possession,     when — 

Issued  in  favor  of  successful 
claimant. 

1175.  Lands    sold    by    executor,    ad- 

ministrator   or     guardian — • 
Sheriff     or     commissioner — 
Recorded — Plaintiff    not   en- 
titled to  possession,  when. 
1175a.  Special    instance    where    im- 
provement    allowed     under 
void  tax  deed. 
1175b.  Improvements — Indian  lands. 


Sec.  1163.     Preliminary  statement. 

It  is  a  rule  of  law  that  any  permanent  improvement,  at- 
tached to  real  estate  so  as  to  become  a  part  and  parcel  of  it, 
is  a  fixture,  and  is  a  part  of  the  real  estate  and  becomes  the 
property  of  the  person  who  has  title  to  the  real  estate  to 
which  it  is  attached.  At  common  law  it  was  the  rule  that 
in  ejectment  the  plaintiff,  on  recovery,  would  not  be  liable 
to  the  party  in  possession  for  the  permanent  improvements 
placed  on  the  real  estate.  In  order  to  do  justice  to  those 
who  have  gone  into  possession  of  real  estate  under  color  of 
title,  and  have  made  valuable  and  lasting  improvements 
thereon,  in  good  faith,  the  Legislature  has  enacted  laws 
giving  the  party  in  possession  the  right  to  recover  the  value 
of  the  improvements  in  case  he  is  evicted  by  someone  hold- 
ing a  paramount  title  to  the  real  estate.  These  statutes  are 
known  and  designated  as  the  occupying  claimant's  laws. 


841  REAL   ACTIONS. — STATUTORY.  §  1164 

Sec.  1164.  In  what  cases  the  occupying  claimant  may  not  be 
evicted  until  improvements  are  paid  for. 
In  all  cases  any  occupjdng  claimant  being  in  quiet  pos- 
session of  any  lands  or  tenements,  for  which  such  person  can 
show  a  plain  and  connected  title  in  law  or  equity,  derived 
from  the  records  of  some  public  office,  or  being  in  quiet 
possession  of,  and  holding  the  same  by  deed,  devise,  descent, 
contract,  bond,  or  agreement  from  and  under  any  person 
claiming  title  as  aforesaid,  derived  from  the  records  of  some 
public  office,  or  by  deed,  duly  authenticated  and  recorded; 
or  being  in  quiet  possession  of,  and  holding  the  same  under 
sale  on  execution,  or  order  of  sale,  against  any  person  claim- 
ing title  as  aforesaid,  derived  from  the  records  of  some 
public  office,  or  by  deed,  duly  authenticated  and  recorded; 
or  being  in  possession  of  and  holding  any  land  under  any 
sale  for  taxes  authorized  by  the  laws  of  this  State,  or  the 
laws  of  the  State  of  Oklahoma,  or  any  person  or  persons  who 
have  made  a  J)07ia  fide  settlement  and  improvements  which 
he,  she  or  they  still  occupy  upon  any  of  the  Indian  lands 
lying  in  this  State,  or  any  lands  held  in  trust  for  the  benefit 
of  any  Indian  tribe  at  the  date  of  such  settlement,  or  which 
may  have  heretofore  been  Indian  lands,  and  which  were 
vacant  and  unoccupied  at  the  date  of  such  settlement,  and 
where  the  records  of  the  county  show  no  title  or  claim  of 
any  person  or  persons,  to  said  lands,  at  the  time  of  such 
settlement ;  or  any  person  in  quiet  possession  of  any  land 
claiming  title  thereto,  and  holding  the  same  under  a  sale 
and  conveyance  made  by  executors,  administrators  or  guard- 
ians, or  by  any  other  person  or  persons  in  pursuance  of  any 
order  of  court  or  decree  in  chancery  where  lands  are  or 
have  been  directed  to  be  sold  and  the  purchasers  thereof 
have  obtained  title  to  and  possession  of  the  same  without 
any  fraud  or  collusion  on  his,  her  or  their  part,  shall  not  be 
evicted  or  thrown  out  of  possession  by  any  person  or  persons 
who  shall  set  up  and  prove  an  adverse  and  better  title  to  said 
lands  until  said  occupying  claimant,  his,  her  or  their  heirs, 
shall  be  paid  the  full  value  of  all  lasting  and  valuable  im- 


§  1165  merwine's  trial  of  title  to  land.  842 

provements  made  on  such  lands  by  such  occupying  claimant, 
or  by  the  person  or  persons  under  whom  he,  she  or  they 
may  hold  the  same  previous  to  receiving  actual  notice  by  the 
commencement  of  suit  on  such  adverse  claim  by  which  evic- 
tion may  be  effected/ 

Sec.  1165.     Occupant  must  have  "color  of  title" — Definition 
of  term. 

The  name  of  this  subject  indicates  that  only  those  persons 
who  occupy  real  estate  under  the  notion  that  they  are  the 
owners  and  have  the  title  can  claim  for  any  permanent  and 
lasting  improvements  placed  thereon.  The  right  to  claim  for 
improvements  under  what  is  known  as  the  Occupying  Claim- 
ant's Law,  does  not  go  to  one  who  places  the  improvements 
on  land  with  the  certain  knowledge  that  his  interest  in  the 
land  shall  eventually  be  extinguished ;  as,  where  one  has  a 
short  time  lease  on  land,  and  makes  valuable  and  lasting 
improvements,  at  the  time  knowing  that  his  leasehold  interest 
will  soon  terminate.  The  Supreme  Court  of  our  State  has 
so  held.- 

The  court,  in  the  case  just  cited,  held  that  further,  who 
calls  to  his  aid  the  terms  of  this  statute  must  be  one  who 
claims  the  land  upon  which  are  lasting  and  valuable  improve- 
ments by  ''color  of  title;"  and  the  court,  in  defining  what 
"color  of  title"  is,  adopts  the  language  of  the  decisions  in 
other  States.  It  says  that  an  "instrument  by  color  of  title, 
is  one  having  a  grantor  and  grantee,  and  containing  a 
description  of  the  lands  intended  to  be  conveyed,  and  apt 
words  for  their  conveyance"  gives  color  of  title.  The  in- 
strument in  such  cases  usually  purports  to  be  a  conveyance 
of  title,  and  because  it  does  not,  for  some  reason  have  that 
effect,  it  passes  only  color,  or  the  semblance,  of  title.  It 
makes  no  difference  whether  the  instrument  fails  to  pass 
an  absolute  title  because  the  grantor  had  none  to  convey,  or 


1  Snyder,    6,128;     Wilson,    4,794;  2  Woodruff    v.    Wallace,    3    Okla. 

Kansas,  5,088    (1801),  identical.  355,  41  Paes  357. 


843 


REAL   ACTIONS. — STATUTORY. 


§1165 


had  no  authority  in  law  or  in  fact  to  convey  one,  or  whether 
such  want  of  authority  appears  on  the  face  of  the  instru- 
ment, or  aliunde.  The  instrument  fails  to  pass  an  absolute 
title  for  the  reason  that  the  grantor  was  not  possessed  of 
some  one  or  more  of  these  requisites,  and  therefore  gives  the 
semblance  or  color  only  of  what  its  effect  would  be,  were  they 
not  wanting.' 


3  Woodruff  V.  Wallace,  3  Okla.  55, 
41  Pac.  363.     In  Wright  v.  Mathew- 
son,    18    Howard,   56,    the    Supreme 
Court  of  the  United  States  said  on 
this     subject:      "The     courts     have 
concurred,    it    is    believed,    without 
an   exception,    in    defining   color    of 
title   to    be    that   which    in    appear- 
ance  is  title,   but  which   in   reality 
is   no  title.     It  is  useless  to  quote 
further  upon  this  subject,  as  all  the 
cases   and   textbooks    seem   to    coin- 
cide   upon    the    question    that     no 
person  having  a  deed  or  instrument 
from  a  grantor   can  claim  color  of 
title,   except  he   has   what  purports 
upon  its  face,  to  be   an  instrument 
conveying   title.      It    is    claimed    in 
said   motion   that   Province   entered 
upon  the  land  in  good  faith,  under 
a  contract  with  one  Crawford,  who 
Province  believed  was  in  the  lawful 
possession     of     the     premises,     and 
under  such  contract  made  valuable 
improvements  of    a   permanent   and 
lasting   character    thereon.      In   the 
same  paragraph,  Province  states  the 
character  of  Crawford's  riijht  in  the 
land,  and  shows  that  Crawford  had 
no  claim  of  any  kind   in  the  same. 
This    showing    is    insufficient    upon 
which  to  base  the  right  of  an  occu- 
pying  claimant.      In   order    to    suc- 
cessfully assert  such  a  right,  under 
our  statute,  the  person  so  claiming 
must   show   a   'plain   and   connected 
title  in  law  or  equity,  derived  from 
the  record  of  some  public  office,  or 


being    in    quiet    possession    of    and 
holding   the    same   by   deed,    devise, 
descent,    contract,    bond,    or    agree- 
ment   from   and    under    any    person 
claiming  title  as  aforesaid,   derived 
from    the    records    of    some    public 
office.'     No  showing  of  this  kind  is 
attempted,     and     as    -against    Lovi, 
defendant  Province  was  a  mere  tres- 
passer,   without    right   of    any    kind 
in   the   possession   of   the  premises. 
Province     v.     Lovi,     4     Okla.     672, 
47   Pac.   476;    Krause  v.   Means,    12 
Kan.   335;   Jay  v.   Granby,  15  Kan. 
173;  C.  B.,  etc.,  Co.  v.  Hardenbrook, 
21   Kan.  440;   Stevens  v.  Ballou,  25 
Kan.  618.     One  who  is  in  equitable 
possession  of  land,  and  holding  the 
same  by  bond  from  and  under  any 
person    claiming    title    by    a    deed 
duly  authenticated  and  recorded,  is 
entitled,  under  the  second  clause  of 
Sec.    601    of   the   Code   of    1868,   to 
the  benefits  of  the  Occupying  Claim- 
ant's   Law.      Where    there    is    duly 
recorded    a    regular     succession    of 
conveyances,     which     appear     upon 
their  face  in  proper  form  and  valid, 
from    the    original    vendee    of    the 
government,  but  no  title  is  actually 
passed   by   reason    of    personal    dis- 
ability to  convey   in   some  grantor, 
the    party    in    equitable    possession 
and  claiming  by  said  chain  of  title, 
is  entitled  under  the  last  clause  cf 
said  Sec.  601,  to  the  benefits  of  the 
act."      Krause    v.    Means,    12    Kan. 
2G5;  North  v.  Moore,  8  Kan.  103.     , 


§  1166  mebwine's  trial  of  title  to  Lu\nd.  844 

Sec.    1166.     Instances   where   occupant   not   allowed   for   im- 
provements. 

It  has  been  held  that  a  quitclaim  deed  from  a  mere  tres- 
passer, although  duly  recorded,  does  not  make  a  "plain  and 
connected  title  in  law  or  equity"  which  entitled  a  party  to 
relief  under  the  first  clause  of  the  Occupying  Claimant  Law 
of  Kansas.* 

An  Indian  owner  of  land,  under  the  treaty  and  stipula- 
tions which  provided  that  land  shall  be  exempt  from  levy, 
taxation  or  sale,  and  shall  be  alienable  in  fee  or  leased,  or 
otherwise  disposed  of,  only  to  the  United  States,  or  to  per- 
sons then  being  members  of  the  Pottawatomie  tribe,  and  by 
an  Indian  subject,  with  the  permission  of  the  President, 
under  such  regulations  as  the  secretary  of  the  interior  shall 
direct,  cannot  be  C(>rri])ell(^d  to  pay  for  improvements  on  thu 
premises  under  the   Occupying  Claimant  Act.^ 

The  purchaser  of  real  property  bound  by  a  judgment  lien 
of  which  he  had  knowledge  at  the  time  of  the  purchase,  is 
not  entitled  to  the  benefit  of  the  Occupying  Claimant  Act 
against  a  purchaser  at  a  judicial  sale  in  proceedings  to  en- 
force the  lien.® 

An  agent  who  rented  land  for  a  nonresident,  made  a  con- 
tract for  its  sale  without  authority  from  the  owner.  The 
purchaser  went  into  possession  under  the  contract  and  made 


*  Jay  V.  Granby,  15  Kan.  172.  balance,    received    from    the    proper 

5  Maynes  v.  Veale,  et  al.,  20  Kan.  officers,   a   patent   for   the   land.     B 

374.     "June  20,   1871,  N   purchased  thereupon     brought     an     action     of 

from  the   State  of   Kansas   a  tract  ejectment,    and    obtained    judgment 

of    school    land,    made    two    annual  for     the     possession     of    the     land, 

payments,  and  then  defaulted.     Sub-  Held,  that  N  was  not  entitled  to  the 

sequently,  the  land  was  assessed  for  benefit   of   the    Occupying   Claimant 

taxes     and     sold     therefor     to     the  Law."     Newland  v.  Baker,  26  Kan. 

county.     Thereafter,  B   paid  to  the  341;     see,     also,     on     this     subject, 

county    treasurer    the    full    amount  State    v.    Emmert,     19    Kan.    546; 

of    the    delinquent    taxes,    took    an  Ewing    v.    Baldwin,    24    Kan.    82; 

assignment    of    the    sale    certificate  Reynolds  v.  Reynolds,  30  Kan.  97. 
from  the  county,  and  then  paid  the  6  Rounsaville   v.   Hazen,   39    Kan. 

balance    due    to    the    State    school  610,  18  Pac.  689. 
fund,    and    upon    payment    of    this  » 


845  REAL  ACTIONS. — STATUTORY.         §§  1167,  1168 

improvements  without  the  knowledge  or  consent  of  the 
principal.  The  owner  repudiated  the  contract  of  sale.  In 
this  instance  the  owner  was  not  chargeable  with  the  value  of 
the  improvements  made  by  said  purchaser. '^ 

Sec.   1167.    Improvements  for  which  the  occupant  may  be 
paid. 

Under  the  Occupying  Claimant  Law,  the  party  in  possession 
is  entitled  to  pay  for  all  lasting  and  valuable  improvements, 
and  such  improvements  would  include  a  sidewalk  extending 
along  the  side  of  the  property  where  the  sidewalk  was  neces- 
sary to  the  property,  or  ordered  or  directed  by  law,  or  by 
the  ordinance  of  a  city.^ 

In  other  instances,  it  has  been  held  that  the  erection  of  a 
house,  is  placing  on  real  estate  a  valuable  and  lasting  im- 
provement ;  in  another  instance,  the  replacing  of  old  buildings 
with  new  and  better  ones  constitutes  a  lasting  and  valuable 
improvement.  In  another  case,  the  placing  of  an  additional 
floor  in  a  building;  in  another,  the  digging  of  a  well;  in 
another,  the  erection  of  fences;  in  another,  the  clearing  of 
unimproved  lands ;  in  another,  the  planting  of  fruit  trees.® 

Sec.  1168.  The  right  to  set  off  rents  against  the  value  of  im- 
provements. 
The  Supreme  Court  of  the  State  of  Kansas,  in  a  very 
interesting  decision,  construing  the  law  as  it  existed  in  that 
State,  stated  that  the  Occupying  Claimant  Law,  as  it  then 
existed,  was  passed  by  the  Legislature  in  1868,  except  that 
sections  601  and  608  of  said  law  were  amended  in  1873.  Said 
sections  601  and  608  had  the  force  and  effect  to  so  modify 
the  other  sections  of  the  Occupying  Claimant  Law  that  the 
occupying  claimant  who  had  made  lasting  and  valuable  im- 

7  ToplifT    V.    Shadwell,     68    Kan.  s  Pacqueth    v.    Pickness,    19    Wis. 

317,  74  Pac.   1,120.  219;     Petit     v.     Flint,     78     N.     W. 

sllentig  V.  Reddin,  38  Kan.  496,  (Mich.)  554;  Parker  v.  Western,  48 
16  Pac.  821.  N.    J.    Eq.    94;    €osgrove   v.    Merz, 

37  Atl.  704    (R.  I.  1897). 


§1169  merwine's  trial  of  title  to  land.  846 

provements  on  the  land,  and  who  is  entitled  to  the  benefit  of 
the  Occupying  Claimant  Law  will  never  forfeit  his  right  to 
the  improvements,  or  else  to  compensation  therefor,  and  no 
writ  of  eviction  could  ever  be  issued  against  him,  to  dis- 
possess him  until  he  had  been  paid  the  assessed  amount  of 
his  improvements;  but  said  sections  601  and  608  do  not  so 
modify  or  change  the  Occupying  Claimant  Law  as  to  take 
away  the  right  of  the  successful  claimant,  who  has  been 
adjudged  to  be  the  owner  of  the  land  to  elect  to  take  the 
value  of  the  land  instead  of  the  laud  itself;  and  under  the 
Occupying  Claimant  Law  as  it  now  exists,  it  is  the  duty  of  the 
court  to  permit  such  successful  claimant  and  owner  to  elect 
to  take  the  value  of  the  land  instead  of  the  land  itself,  if  the 
owner  so  chooses,  and  to  fix  some  reasonable  time  within 
which  the  occupying  claimant  shall  pay  to  the  owner  the 
value  of  the  land  as  assessed  by  jury/" 

Sec.  1169.     Tax  title  which  will  support  the  claim  for  im- 
provements. 

The  title,  by  which  the  successful  claimant  succeeds  against 
the  occupying  claimant,  in  all  cases  of  lands  sold  for  taxes, 
by  virtue  of  any  of  the  laws  of  this  State,  shall  be  considered 
an  adverse  and  better  title,  under  the  provisions  of  this 
article,  whether  it  be  the  title  under  which  the  taxes  were 
due,  and  for  which  said  land  was  sold,  or  any  other  title  or 
claim  whatever;  and  the  occupying  claimant  holding  pos- 
session of  land  sold  for  taxes,  as  aforesaid,  having  the  deed 
of  a  collector  of  taxes  or  county  clerk  for  such  sale  for 
taxes,  or  a  certificate  of  sale  of  said  land  from  a  collector 
of   taxes   or    a    county   treasurer,    or   shall   claim    under    the 

10  Stevens  v.  Ballou,  27  Kan.  63.  it  was  worth  $12.00  per  month. 
In  Deitzler  v.  Wilhite,  55  Kan.  200,  Held,  that  the  plaintiff  has  no 
40  Pac.  272,  the  defendant  took  right,  either  under  the  Occupyin.^ 
possession  under  a  void  tax  deed  of  Claimant's  Act,  or  the  principles  of 
a  vacant  lot  and  erected  a  valuable  equity,  to  rent  for  the  improve- 
house  thereon.  The  lot  without  ments  erected  by  the  defendant 
improvements  had  but  a  trifling  accruing  prior  to  the  service  of  sum- 
rental   value.      With    improvements  mona  in  the  action. 


847  REAL  ACTIONS. — STATUTORY.         §§  1170,  1171 

person  or  persons  who  hold  such  deed  or  certificate,  or  any- 
other  title  or  claim  whatever,  shall  be  considered  as  having 
sufficient  title  to  said  land  to  demand  the  value  of  improve- 
ments under  the  provisions  of  this  article.^^ 

Sec.  1170.     Construction  of  the  occupying  claimant  statutes. 

The  Supreme  Court  of  Kansas  adopts  a  broad  and  liberal 
construction  of  this  statute,  holding  that  the  act  rests  on 
the  broadest  equity,  and  should  receive  a  liberal  construc- 
tion.^^ 

The  adjustment  of  the  rights  of  occupying  claimants  is  a 
matter  of  equitable  cognizance;  and  courts  may,  in  addition 
to  the  relief  provided  by  statute  and  as  supplementary 
thereto,  make  such  orders  in  such  cases  as  shall  be  equitable 
and  just  in  matters  not  specifically  provided  for  by  the 
statute.^^ 

Sec.  1171.  Occupying  claimant's  law— Specific  findings  of 
the  court — Three  disinterested  freeholders,  ap- 
praisement— Jury  impaneled,  when. 

The  court  rendering  judgment  in  any  case  provided  for 
by  this  article  against  an  occupying  claimant,  shall,  at  the 
request  of  such   occupying   claimant,   for  the   benefit   of  the 

11  Snyder,    6,129;    Wilson,    4,793;  He  may  not  go  on  land  in  possession 

Kansas',     5,089      (1901),     identical.  of  another  and  make  improvements 

X'nder   the    Kansas    statute,    a   pur-  and    receive   compensation    therefor, 

chaser  at  a  tax  sale,  whose  title  in  but    must    first    acquire    full    and 

an  ejectment  action  is  adjudged  de-  actual  possession.    Condadt  v.  Myers 

fective,  is  entitled  to  a  recovery  of  (Kan.),  2  Pac.  858;   see,  also,  Steb- 

all  taxes  paid  by  him  and  interest  bins  v.  Guthrie,  4  Kan.  302;   Bemis 

thereon,  Avhether   paid  within  three  v.    Becker,    1    Kan.   248;    Mercer   v. 

years   before   the   commencement   of  Justice,   63  Kan.  225,  65  Pac.  219; 

the  action  or  not.     A  party  is  not  Hill  v.  Allison  (Kan.),  100  Pac.  651. 

entitled  to  the  benefit  of  the  Occu-  12  Stebbins    v.     Guthrie,    4    Kan. 

pying     Claimant     Act,      or     to      a  302;    Bemis  v.  Becker,   1  Kan.   248. 

recovery   for   the   value   of   the   im-  i3  Mercer  v.  Justice,  63  Kan.  225, 

provements  made  by  him,  unless  at  65  Pac.  219. 
the   time   of   such   improvements   he 
has  the  full  and  actual  possession. 


§  1171  merwine's  trial  of  title  to  land.  848 

provisions  of  this  article,  cause  an  entry  to  be  made  upon 
the  journal  of  such  refjuest,  and  shall  at  once  set  a  day  for 
the  trial  of  the  right  of  such  occupying  claimant  to  com- 
pensation for  all  lasting,  valuable  and  permanent  improve- 
ments made  by  such  occupying  claimant,  or  those  under 
whom  he  claims  upon  the  premises  prior  to  the  issuing  of 
summons  in  the  cause,  and  at  such  trial  each  party  shall  pro- 
duce his  evidence  relating  to  such  improvements,  and  the 
court  shall  make  specific  findings  of  fact  on  all  matters  re- 
lating to  the  right  of  such  occupying  claimant  to  compensa- 
tion for  such  improvements,  and  shall  find  specifically 
whether  such  improvements  were  made  in  good  faith  and 
under  color  of  title,  and  whether  the  occupying  claimant  is 
entitled  to  the  benefit  of  this  article,  which  findings  shall  be 
entered  of  length  upon  the  journal,  and  if  the  court  shall 
find  that  the  occupying  claimant  is  entitled  to  compensation 
for  such  improvements,  it  shall  at  once  appoint  three  dis- 
interested freeholders  of  the  county  who  shall  have  the 
qualifications  of  jurors  in  the  cause,  to  assess  the  actual 
value  of  the  improvements  on  the  date  of  the  assessment,  of 
which  appointment  and  the  date  of  assessment  all  parties 
to  the  action  shall  have  five  days'  actual  notice;  also  the 
rental  value  of  the  premises  from  the  date  of  the  summons 
to  the  date  of  the  appraisement;  also  the  actual  value  of  the 
land  without  the  improvements;  which  assessments  shall  be 
made  upon  actual  view  of  the  premises,  and  said  appraisers 
shall  reduce  their  appraisement  to  writing  and  return  the 
same  to  the  court  or  clerk  thereof  forthwith;  and  upon  such 
report  the  court  shall  render  judgment  in  accordance  there- 
with :  Provided,  that  if  either  party  shall  at  any  time  before 
the  return  and  filing  of  the  report  of  the  appraisers,  demand 
a  trial  by  jury,  the  court  shall  at  once  discharge  the  ap- 
praisers and  impanel  a  jury  to  find  the  facts  and  make  the 
assessment  of  value  which  the  appraisers  were  to  make,  which 
trial  shall  be  had  in  open  court  and  upon  proofs  to  be  ad- 
duced by  the  parties,  and  the  trial  shall  be  conducted  in  all 
respects  as  other  jury  trials,  and  the  court  may,  ia  its  dis- 


849  REAL   ACTIONS. — STATUTORY.  §§1172,1173 

cretion,  send  the  jury  to  take  an  actual  view  of  the  prem- 
ises, and  the  said  jurj-  shall  return  their  findings  of  value 
into  court,  and  the  court  shall  then  enter  judgment  in  ac- 
cordance with  such  findings:  Provided,  that  if  either  party 
deem  himself  aggrieved  by  such  assessment  of  values  or 
findings  of  the  court,  he  may,  upon  motion  and  proper  show- 
ing, obtain  a  new  trial  as  in  other  cases  under  the  code  of 
civil  procedure  of  this  State.^* 

Sec.  1172.    Judgment  for  value  of  improvements— Execution 
thereof. 

If  the  jurors  shall  report  a  sum  in  favor  of  the  plaintiff  or 
plaintiffs  in  said  action,  for  the  recovery  of  real  property 
on  the  assessment  and  valuation  of  the  valuable  and  lasting 
improvements,  and  the  assessment  of  damages  for  waste,  and 
the  net  annual  value  of  the  rents  and  profits,  the  court  shall 
render  a  judgment  therefor  without  pleadings,  and  issue 
execution  thereon  as  in  other  cases;  or  if  no  excess  be 
reported  in  favor  of  said  plaintiff  or  plaintiffs,  then,  and  in 
either  case,  the  said  plaintiff  or  plaintiffs  shall  be  thereby 
barred  from  having  or  maintaining  any  action  for  mesne 
profits.^^ 

Sec.  1173.  Value  between  rents  and  improvements  before 
writ  of  ouster  issue — Appeal. 
If  the  appraisers  or  jury  appointed  or  impaneled  as  herein- 
before provided  under  the  provisions  of  this  act,  shall  find 
the  value  of  the  improvement  is  greater  than  the  value  of 
the  rents  and  damages  and  waste,  then  the  court  shall  enter 

"Snyder,    6,130;    Wilson,    4,796.  disturbed    on    ex    parie    affidavits. 

For  questions  of  practice  under  the  Xorth  v.  IMoore,   8   Kan.    143.     The 

Occupying    Claimant's    Law    of    the  rule  of  estoppel.     Bradley  v.  Rogers, 

State "  of    Kansas,     see    Bauder     v.  33  Kan.   120.     Waivers  of  errors  in 

Bryan,  20  Kan.  369.     As  to  notice  the  action.     Price  v.  Allen,  39  Kan. 

in    writing    to    adverse    party,    see  476,  18  Pac.   609. 

Lemert  v.  Barnes,   18  Kan.  9,  as  to  i=  Snyder,    6,131;    Wilson,    4,504; 

the    allegations     of    the    pleadings.  Kansas,  4,708    (1889). 
The  finding  of  the  jury  will  not  be 


§  1174  merwine's  trial  of  title  to  land.  850 

judgment  that  the  successful  claimant  pay  to  the  clerk  of  the 
court  for  the  use  of  the  occupying  claimant  the  full  amount 
of  the  excess  of  the  value  of  the  improvements  over  the 
value  of  the  rents,  damages  and  waste  before  the  writ  of 
ouster  shall  issue :  Provided,  if  either  party  shall  deem  him- 
self aggrieved  by  the  judgment  and  shall  desire  to  contest 
either  or  both  the  findings  of  the  court  or  the  appraisement 
of  the  appraisers,  or  the  jury  herein  provided  for,  by  appeals 
or  otherwise,  to  a  higher  court,  and  the  successful  claimant 
shall  execute  an  undertaking  to  the  occupying  claimant  in 
double  the  amount  of  the  excess  in  value  as  found  by  the 
appraisers  or  the  jury,  with  good  and  sufiRcient  surety  to  be 
approved  by  the  clerk  of  the  court,  conditioned  that  he  will 
pay  such  excess  with  interest  from  the  date  of  the  judgment, 
if  the  judgment  be  affirmed  by  the  appellate  court,  then  the 
writ  of  ouster  shall,  at  the  request  of  the  successful  claimant, 
issue  at  once/® 

Sec.  1174.    Writ  of  possession,  when — Issued  in  favor  of  suc- 
cessful claimant. 

If  the  successful  claimant,  his  heirs,  or  the  guardians  of 
said  heirs,  they  being  minors,  shall  elect  to  receive  the  value 
without  improvements  so  as  aforesaid  assessed,  to  be  paid 
by  the  occupying  claimant  within  such  reasonable  time  as 
the  court  may  allow,  and  shall  tender  a  general  warranty 
deed  of  the  land  in  question,  conveying  such  adverse  or 
better  title  within  said  time  allowed  by  the  court  for  the 
payment  of  the  money  in  this  section  mentioned,  and  the 
occupying  claimant  shall  refuse  or  neglect  to  pay  said  money 
to  the  successful  claimant,  his  heirs  or  their  guardians,  within 
the  time  limited  as  aforesaid,  then  a  writ  of  possession  shall 
be  issued  in  favor  of  said  successful  claimant,  his  heirs  or 
their  guardians.^^ 


18  Snyder,  6,132;  Wilson,  4,798.  Price    v.    Allen,    39    Kan.    476,    18 

17  Snyder,    G,133;     Wilson,    4,799;        Pac.     609;     Stevens    v.    Ballou,    27 
Kansas,     5,097      (1901),     identical;       Kan.  595. 


851  REAL  ACTIONS. — STATUTORY.        §§  1175,  1175a 

Sec.  1175.  Lands  sold  by  executor,  administrator  or  guard- 
ian— Sheriff  or  commissioner — Recorded — Plain- 
tiff not  entitled  to  possession,  when. 

Whenever  any  land,  sold  by  an  executor,  administrator, 
guardian,  sheriff  or  commissioner  of  court,  is  afterwards  re- 
covered in  the  proper  action  by  any  person  originally  liable, 
or  in  whose  hands  the  land  would  be  liable  to  pay  the  de- 
mand or  judgment  for  which,  or  for  whose  benefit  the  land 
was  sold,  or  anyone  claiming  under  such  person,  the  plain- 
tiff shall  not  be  entitled  to  the  possession  of  the  land  until 
he  has  refunded  the  purchase  money  with  interest,  deducting 
therefrom  the  value  of  the  use,  rents  and  profits,  and  injury 
done  by  waste  and  cultivation,  to  be  assessed  under  the  pro- 
visions of  this  chapter/^ 

Sec.  1175a.  Special  instance  where  improvement  allowed 
under  void  tax  title. 
M.,  after  the  execution  to  him  of  a  void  tax  deed,  in 
good  faith  went  into  the  possession  of  the  lots  conveyed  and 
erected  thereon  improvements  to  the  value  of  about  one 
thousand  dollars.  After  taking  possession  of  the  lots,  he 
borrowed  from  S.  on  his  promissory  note  secured  by  mort- 
gage on  said  premises,  which  money  he  expended  in  placing 
improvements  on  said  lots.  Afterward,  and  after  the  execu- 
tion and  recordation  of  said  mortgage,  M.  removed  from  said 
premises  and  leased  the  same  to  H.,  who  went  into  possession 
as  the  tenant  of  M.     Afterward  ]\I.  executed  a  warranty  deed 


18  Snyder,  6,134;  Wilson,  4,800;  shall  be  issued  until  the  assessment 
Kansas,  5,100  (1900),  identical.  of,  and  the  value  of  the  improve- 
The  Act  of  May  6,  1873,  amendatory  ment  is  paid.  In  substance,  it  only 
to  Sees.  601  and  608,  of  Art.  25,  requires  that  the  value  of  the 
Chap.  80,  Gen.  St.,  for  the  relief  of  improvements  shall  be  paid  as  a 
occupying  claimants,  is  constitu-  condition  precedent  to  the  entry 
tional  and  valid  so  far  as  providing  into  possession  by  the  owner,  and 
that  no  writ  or  process  for  the  does  not  give  the  occupying  claim- 
eviction  of  a  claimant,  entitled  ant  the  option  to  keep  the  land, 
thereunder  to  the  valuation  of  his  Clay  pool  v.  King,  21  Kan.  434. 
lasting  and  valuable  improvements, 


§  1175b  merwine's  trial  of  title  to  land.  852 

to  said  lots  to  11.,  who  was  and  still  is  in  possession.  Upon 
a  suit  to  foreclose  the  said  mortgage,  S.,  upon  equitable 
grounds,  was  entitled  to  the  benefit  of  the  occupying  claim- 
ant's act.^° 

Where,  in  a  suit  commenced  on  the  twenty-third  day  of 
March,  nineteen  hundred  and  four,  to  cancel  the  deed  to  a 
homestead  executed  by  plaintiff  to  defendant  on  the  eighteenth 
day  of  February,  eighteen  ninety-seven,  defendant  died  in 
possession,  pending  the  submission  and  before  the  decision  in 
this  court,  and  where  the  mandate  sent  down  was  recalled, 
and,  as  again  sent  doAvn,  ordered,  among  other  things,  the 
deed  set  aside  and  plaintiff  put  into  possession,  but  left 
open  the  question  of  the  rights  of  occupying  claimants; 
held,  that  defendant,  if  living,  or  his  heirs,  if  dead,  in  quiet 
possession  of  the  land  from  the  date  of  said  deed,  should 
be  permitted  to  come  in  and  assert  their  rights  under  the 
statute.* 

Sec.  1175b.   Improvements — Indian  lands. 

Any  person  being  a  noncitizen  in  possession  of  lands,  hold- 
ing the  possession  thereof  under  a  lease,  or  improvement 
contract  with  either  of  said  nations  or  tribes,  or  any  citizen 
thereof,  executed  prior  to  the  first  day  of  January,  eighteen 

19  Standifer    v.    Morris,    25    Okla.  rations  upon   it   in   good   faith    and 

802,    108    Pac.    413.      The   court    in  under    an    honest    belief    of    owner- 

this    action    quoted    with    approval  ship,  and  the  real  owner  is  for  any 

the  following:     "The  adjustment  of  reason    compelled    to    come    into    a 

the    rights    of    occupying    claimants  court  of  equity  for  relief,  that  court, 

is  a  matter  of  equitable  cognizance,  applying   the   familiar   maxim   that 

and  courts  may,  in  addition  to  the  he  who  seeks  equity  must  do  equity, 

relief   provided   by   statute,    and   as  will   compel    him   to   pay   for   those 

supplementary    thereto,    make    such  improvements,    as   far    as    they    are 

orders  as  are  equitable  and  just  in  permanently  beneficial  to  the  estate 

matters  not  specifically  provided  for  and    enhance    its    value.      Story    on 

by   statute.      Mercer   v.    Justice,   63  Equity     Jurisprudence,     Sec.     779; 

Kan.   225,   65   Pac.  219;    Cleland  v.  Pomeroy   on   Equity   Jurisprudence, 

C.  Clark,   123  Mich.  179,  81   N.  W.  Sec.  1,241    (2d  ed.)." 

1,086,  81   Am.   St.  Rep.   161.     It   is  *  Snyder    Stat.,    6,128    and    6,130. 

a    well-settled    principle    of    equity,  Hewitt   v,   Goldenborough,   29   Okla. 

moreover,    that    when    a    bona    fide  667. 
possessor  of  property  makes  melio- 


853  REAL   ACTIONS. — STATUTORY.  §  1175b 

hundred   and   ninety-eight,    may,    as   to    lands   not    exceeding 
in  amount  one  hundred  and  sixty  acres,  in  defense   of  any 
action  for  the  possession  of  said  lands  show  that  he  is  and 
has  been  in  the  peaceable  possession  thereof,  and  that  he  has 
while  in  such  possession  made  valuable  and  lasting  improve- 
ments thereon,  and  that  he  has  not  enjoyed  the  possession 
thereof   a   sufficient   length    of   time   to    compensate   him    for 
such    improvements.      Thereupon    the    court    or    jury    trying 
such  cause  shall  determine  the  fair  and  reasonable  value  of 
such  improvements  and  the  fair  and  reasonable  rental  value 
of  said  lands  for  the  time  the  same  shall  have  been  occupied 
by  such   person,   and   if  the   improvements   exceed  in   value 
the    amount    of    rents    with    which    such    person    should    be 
charged  the  court,  in  its  judgment,  shall  specify  such  time 
as  wdll,  in  the  opinion  of  the  court,   compensate  such  person 
for  the  balance  due,  and  award  him  possession  for  such  time 
unless  the  amount  be  paid  by  claimant  within  such  reason- 
able time  as  the  court  shall  specify.     If  the  finding  be  that 
the  amount  of  rents  exceed  the  value  of  the  improvements, 
judgment  shall  be  rendered  against  the  defendant  for  such 
sum,  for  which  execution  may  issue.-" 

20  Act  June  28,  1898;   30  Stat.  L.  495, 


§1176 


MEBWINE'S    trial    of    title    to    LuVND, 


854 


3.     THE  PROCEDURE  BY  WHICH  TITLE  TO  REAL 
ESTATE  IS  QUIETED. 


SECTION 

1176.  The  statutory  action  to  quiet 

title. 

1177.  The   equitable  action  to  quiet 

title. 

1178.  The   nature  of  the  action. 

1179.  Sufficiency  of   the   allegations 

of  the  petition  to  quiet  title. 

1180.  Answers     and     cross-petitions 

in  the  action. 

1181.  A    person   having   no   interest 

in  real  estate  cannot  main- 
tain the  action  to  quiet 
title  thereto. 

1182.  Awarding     costs     when     dis- 

claimer is  filed  by  a  defend- 
ant. 

1183.  The    nature    and    effect    of   a 

decree   quieting  title. 

1184.  Injunction  against  defendants 

may  be  demanded,  when. 

1185.  The    ordinary    form    for    the 

petition  to  quiet  title. 

1186.  Form  for  the  petition  to  quiet 

title  to  land  devised  to  de- 
scend to  brothers,  etc.,  in 
case  of  death  without  heirs. 


SECTION 

1187.  Form    for   the   petition   in  an 

action  to  quiet  title  and  to 
enjoin  judicial  sale. 

1188.  Form  for  the  answer  in  action 

to  quiet  title  of  adverse  pos- 
session for   more   than   

years. 

1189.  Form    for    the   judgment   and 

decree  of  the  court  in  the 
action    to    quiet    title. 

1190.  Procedure    by    which    title   to 

real  estate  is  quieted — The 
form  for  the  petition. 

Form  for  praecipe  for  sum- 
mons. 

Form  for  the  summons. 

Form  for  waiver  of  summons 
and  entry  of  appearance. 

1194.  Form  for  motion  for  appoint- 

ment of  guardian  ad  litem 
for  minor   defendants. 

1195.  Order  appointing  guardian  ad 

litem   for  minor   defendants. 

1196.  The   answer   of    the   guardian 

ad  litem. 

1197.  The  decree  of  the  court  quiet- 

ing title. 


1191. 


1102 
1193 


Sec.  1176.     The  statutory  action  to  quiet  title. 

It  is  provided  by  statute  that  an  action  may  be  brought 
by  any  person  in  possession,  by  himself  or  tenant,  of  real 
estate,  against  any  person  who  claims  an  estate  or  any 
interest  therein  adverse  to  him,  for  the  purpose  of  determin- 
ing such  adverse  estate  or  interest,  and  said  action  may 
be  joined  with  an  action  to  recover  possession  of  such  real 
property  by  any  person  not  in  possession.^ 

This  statute  has  done  away  with  much  of  the  law  concern- 
ing the  procedure  in  the  action  to  quiet  title.     Heretofore  the 


lAct  of  January  25,  Wll;   S.  L.   1910-1911,   page   26. 


S55  REAL  ACTIONS. — STATUTORY.  §  1177 

action  to  quiet  title  could  only  be  brought  by  one  in  pos- 
session, unless  the  land  should  be  wild  and  unoccupied  by 
anyone.  However,  in  some  jurisdictions  the  courts  have  held 
that  anyone  claiming  an  equitable  estate  in  the  real  estate 
could  have  his  action  to  quiet  the  title  though  out  of  pos- 
session of  the  same.-  ^ 

Sec.  1177.    The  equitable  action  to  quiet  title. 

Before  the  enactment  of  this  statute  providing  for  the 
present  action  to  quiet  title,  the  action  was  begun  by  a  bill 
in  chancery,  and  was  entertained  exclusively  within  the 
jurisdiction  of  the  chancery  courts.^  An  action  quia  timet 
may  be  brought  in  equity  and  this  has  always  been  the  rule 
of  law  in  the  code  States.* 

The  Supreme  Court  of  the  State  of  Kansas  has,  in  a  well 
considered  case,  very  plainly  set  forth  the  principles  involved 
in  the  equitable  action  to  quiet  title.  It  has  said  that  in  an 
action  to  remove  a  cloud  on  the  title,  when  the  petition  set 
out  all  the  facts  similar  to  a  bill  in  equity  and  independent 
of  the  statutory  regulations,  it  is  not  necessary  to  allege  that 
the  plaintiff  was  in  possession  of  the  premises.^ 

The  statute  in  regard  to  the  quieting  of  titles  did  not  take 
away  any  of  the  previously  existing  equitable  remedies.  The 
case  under  consideration  comes  with  a  well  understood  rule 
of  equity  jurisprudence,  and  is  independent  of  statutory 
regulations.  The  relief  in  such  cases  is  of  a  kind  given 
under  the  old  practice  only  in  courts  of  equity,  and  in  cases 
outside  the  limits  of  the  statute;  and  the  facts  must  be 
fully  stated,  substantially  as  in  a  bill  in  equity  under  the 
former  chancery  practice.^ 

2  Taylor  v.  Springs,  11  Okln.  710,  5  Grove  v.  Jennings,  46  Kan.  3G6, 
69    Pac.    64;    Womble    v.    Pike,    17       26   Pac.   73S. 

Okla.  122,  87  Pac.  427.  ®  Grove  v.  Jennings,  46  Kan.  366, 

3  2  Yaple's  Code  Prac.  and  Prec,  26  Pac.  730;  Douglass  v.  Nii7Aim. 
ggp  773  16  Kan.  515;  Pettit  v.  Shepherd, 
^  4r)uhme  V.  Mahner.  18  C.  C.  707;  5  Paige,  501;  Field  v.  Holbrook,  6 
Darlington    v.    Compton,    20    C.    C.  Duer,  597 ;  Jones  v.  Smith,  22  Mich. 


242. 


360. 


§  1178  MER wine's  trial  op  title  to  land.  856 

Under  this  rule  of  equity  practice  a  person  who  holds  the 
legal  title  to  land,  though  not  in  possession,  may,  inde- 
pendently of  the  statute,  maintain  a  suit  in  equity  to  remove 
a  cloud  on  his  title,  and  in  such  suit  the  court  may  decree 
the  reformation  or  cancellation  of  records,  and  the  execu- 
tion of  deeds  or  releases." 

Under  the  laws  in  force  in  the  Indian  Territory  at  the  time 
of  the  erection  of  the  State,  where  one  holding  an  equitable 
title  only  to  land  comes  into  a  court  of  equity,  to  impeach  or 
cancel  or  compel  a  conveyance  of  the  legal  title,  or  the 
cancellation  of  an  inferior  equitable  title,  the  jurisdiction  of 
the  court  in  no  wise  depends  upon  the  questions  of  pos- 
session.^ 

Sec.  1178.     The  nature  of  the  action. 

The  purpose  of  the  action  was  to  suppress  litigation  and 
prevent  multiplicity  of  suits.  The  action  should  be  granted 
in  every  case  in  which  a  claim  or  lien  on  real  estate  seems 
to  be  asserted  or  exists  to  the  end  that  the  land  should  be 
freed  from  every  lurking  and  unsubstantiated  claim,  for 
even  the  suspicion  of  such  claim,  no  matter  how  ill-founded, 
affects  the  value  when  on  sale.  The  essential  elements  of  the 
old  action  qiiia  timet — ne  in  juste — was  the  apprehension  of 
some  injury  at  the  hands  of  the  defendant,  some  loss  to  be 
occasioned  to  the  plaintiff  by  the  defendant's  act  or  omission 
in   case   of  delay.     The   bill   must   be   to   suppress  litigation. 

7  Hager  v.   Shindler,   29   Cal.   47 ;  «  Wheatland  v.   Dowden,  26  Okla. 

Thompson    v.    Lynch,    29    Cal.    18";  441,      10      Pac.      899;      Branch     v. 

Kennedy  v.   Northrup,   15   111.    148;  Mitchell,  24  Ark.  431;   Lawrence  v. 

Eedmond  v.  Packenham,  66  111.  434;  Zimpleman,   37   Ark.   643;    Byers  v. 

Booth  V.  Wiley,   102  111.  84;   Tabor  Danley,     27     Ark.     77;     Miiler     v. 

V.   Cook,   15   :Mich.   322;    Ormsby  v.  Xieman,    27    Ark.    233;'    Chaplin   v. 

Barr,    22    Mich.    80;    King   v.    Car-  Holmes,     27     Ark.     414;      Sale     v. 

penter,     37     Mich.     363;      Low     v.  McLean,    29    Ark.    612;'   Crane    v. 

Staples,    2    Nev.    209-.     Almony    v.  Eandolph,    30    Ark.    579;    Bryan   v! 

Hicks,    3    Head,    39;    Pier   v.   City,  Winburn,  43  Ark.  28. 
38    Wis.    470;    Biince   v.    Gallagher, 
5    Blatchf.    481:    Bowdish   v.   Metz- 
ger,  71  Kan.  753,  81  Pac.  484. 


857  REAL   ACTIONS. — STATUTORY.  §  1178 

In  the  action  to  quiet  title  under  the  statute  there  must  be 
claim  of  present  right  by  the  defendants  capable  of  being 
enforced  by  action  or  by  their  own  act,  and  which,  if  en- 
forced, would  interfere  with  the  plaintiff's  enjoyment  of  the 
property.® 

The  adverse  claim  need  not  relate  to  or  affect  the  right  of 
present  possession.  A  party  in  possession  claiming  a  fee 
may  bring  the  action  against  a  party  who  asserts  title  in 
remainder,  who  insists  that  the  party  in  possession  has  only 
a  life  estate.* 

It  would  seem  that  the  statute  is  intended  to  embrace  every 
description  of  claim  w^iereby  the  plaintiff'  might  be  deprived 
of  the  property  or  its  title  clouded,  or  its  value  depreciated. 
The  plaintiff  has  the  right  to  be  quieted  in  his  title  whenever 
any  claim  is  made  to  real  estate  of  which  he  is  in  posses- 
sion, the  effect  of  which  claim  might  be  litigation  or  loss 
by  him  of  the  property." 

The  action  may  be  maintained  to  require  the  setting  up  and 
the  cancellation  of  instruments  which  are  voidable,  or  instru- 
ments which  are  in  reality  void  and  yet  apparently  valid.^'^ 
But  the  statutory  action  to  quiet  title  can  never  be  used  for 
the  sole  purpose  of  getting  information  from  the  courts  as 
to  plaintiff's  rights, t  for  it  has  always  been  the  policy  of 
courts  not  to  allow  the  bringing  of  an  action  when  no  relief 
is  sought  beyond  the  advice  of  the  courts  as  to  the  rights  of 
parties.^-  It  is  sufficient  that  the  claim  of  defendant  casts  a 
cloud  upon  the  title.  No  matter  how  slight  it  is,  the  court 
will  enter  a  decree  of  removal. ^^ 

In  an  action  to  quiet  title,  if  plaintiff  shows  peaceable  pos- 
session under  a  conveyance,  even  though  defective,  and  the 

9  Collins  r.  Collins.  19  0.  S.  471.  f  Wabash,   etc.,   v.   Toledo,   etc.,   7 
*  Rhea  v.  Dick.  34  0.  S.  420.               X.  P.   198. 

10  Rhea  V.  Dick,  34  0.  S.  424;  12  Collins  v.  Collins.  19  0.  S.  468; 
Bogert  V.  City,  27  N.  J.  Eq.  568;  Cory  v.  Fleming,  29  0.  S.  147; 
Douglass  V.  Scott,  5  Ohio,  195 ;  Railway  v.  Commissioners,  30  0.  S. 
Joyce  V.  :^.IcAvoy,  31  Cal.  274.  120;  Rothgeb  v.  Monk,  35  0.  S.  503. 

11  Duhme  v.  Mahner,  18  C.  C.  708.  i3  Lowemiller  v.   Fouser,  52  O.  S. 

123. 


§  1178  MER wine's  trial  of  title  to  land,  858 

defendant  shows  no  title  or  right,  the  plaintiff  is  entitled  to 
have  his  title  quieted  as  against  said  defendant  and  those 
claiming  under  him."  The  action  will  lie  to  correct  a  mis- 
take in  the  execution  of  a  conveyance ;  ^^  to  correct  a  deed 
destroyed  by  parties  under  a  misapprehension  that  the  de- 
struction of  the  instrument  reconveyed  title ;  ^^  to  correct  an 
invalid  mechanic's  lien ;  ^^  to  determine  claim  of  city  as  to 
ownership  of  part  of  a  street ;  ^^  to  clear  a  cloud  on  title 
caused  by  defective  highway  proceedings ;  ^^  to  remove  un- 
founded claim  of  certain  rights  under  a  forfeited  gas  lease ;  -° 
to  remove  cloud  against  title  caused  by  an  invalid  mort- 
gage ;  ^^  to  satisfy  loss  on  real  estate,  sought  to  be  held  under 
foreclosure  of  mortgage ; "  to  clear  title  to  real  estate  by 
adverse  possession ;  ^^  to  remove  a  cloud  upon  title  occasioned 
by  terms  in  a  will.-* 

Where  the  title  of  a  party  to  real  estate  is  evidenced  by 
quitclaim  deed,  and  the  adverse  claimant  claims  under  a 
sheriff's  deed  upon  a  judgment  and  execution  against  a 
debtor,  who  it  is  not  shown  ever  had  title,  either  in  law  or 
equity,  the  title  conveyed  by  quitclaim  deed  will  be  held  to 
be  paramount;  and  where  a  defendant  in  an  action  to  quiet 
title,  filed  an  answer  setting  up  paramount  title  in  himself, 
and  trial  was  had,  and  the  question  of  title  fully  gone  into, 
submitted  to  the  court,  and  judgment  obtained  upon  the 
issue  of  title  alone  upon  the  evidence  submitted  adversely, 
and  found  to  be  wholly  without  merit,  he  is  estopped  from 
afterwards   denying   the    right    of   the   plaintiff   to    maintain 


14  Bettor  V.  Holland,  57  0.  S.  505.  21  Bayard    v.    Ramsey,    2    C.    C, 

15  Clements  v.  Noble,  40  0.  S.  41.  N.S.,  492. 

16  Spangler  V.  Dukes,  39  0.  S.  642.  22  Winemiller     v.      Laughlin,     51 

17  Baldwin    v.    Detzel,    1    Iddings  O.  S.  421. 

F.  R.  D.  138.  2.-!  Buchanan  v.  Roy,  2  0.  S.  252; 

18  Miller    v.    Cincinnati,    5    C.    C.  Thomas    v.    White,     2    0.    S.    540; 
^^3-  Douglass  V.  Scott,  5   Ohio,  194. 

19  Lowemilkr  v.  Fouser,  52  0.   S.  24  Darlington  v.  Compton,  20  C.  C. 
123-  242;   Rhea  v.  Dick,  34  0.  S.  420. 

soDettor  v.  Holland,  57  0.  S.  505. 


859  RE.VL    ACTIONS. — STATUTORY.  §  1178 

the  action,  for  the  reason  that  plaintiff  was  not  in  possession 
of  the  real  estate  in  question.-^ 

That  eminent  jurist,  Judge  Pomeroy,  in  his  most  excellent 
work  on  Equity  Jurisprudence,  in  discussing  the  nature  of 
the  adverse  claim  against  the  title  to  real  estate,  which  will 
invoke  the  jurisdiction  of  the  court  to  cancel  it,  as  a  cloud 
upon  such  title,  says: 

In  general,  it  may  be  ^aid  that  the  action  may  be  brought 
against  any  person  claiming  an  adverse  interest,  of  whatever 
kind.-^ 

The  words  "claim  an  estate  or  interest,"  which  are  the 
usual  words  of  the  statute,  are  used  in  a  broad  sense,  and  are 
not  technical  in  their  meaning.^'^ 

Though  the  defendant's  claim  is  worthless  and  void  upon\ 
its  face,  yet  if  it  is  hostile  to  the  plaintiff  and  clouds  his' 
title  so  as  to  depreciate  the  market  value  in  the  estimation 
of  business  men,  the  action  can  be  maintained.^^ 

It  is  also  immaterial  whether  or  not  the  defendant  claims 
under  the  same  or  different  and  independent  sources  of  title 
from  the  plaintiff.-^  Neither  is  it  material  whether  or  not 
the  defendant  has  actually  asserted  such  claim  before  the 
commencement  of  the  action,  as  it  is  one  of  the  essential 
features  of  the  action  wherein  it  differs  from  the  original 
equitable  suit  to  quiet  title,  that  the  plaintiff  need  not  wait 
until  proceedings  are  brought  against  him.^** 

25  Mosier  v.  Momsen,  13  Okla.  41,  immaterial    that  the   adverse  claim 

74  Pac.  905.  is  invalid  upon  its  face.     Kittle  v. 

26Landnegan   v.    Peppin,    94    Cal.  Bellagardie,    86    Cal.    556,    25    Pac. 

465,  29  Pac.  771;   Fry  v.  Summers,  555;  Palmer  v,  Yorks,  77  Minn.  20, 

4   Ida.    424,    39    Pac.    1,118;    Clark  79   N.   W,    587;    Moores   v.   Claska-' 

V.    Darlington,    7    S.    Dak.    148,    58  mas,    40    Ore.    536,    67    Pac.    662; 

Am.  St.  Pvep.  835,  G3  X.  W.  771.  Kinsman  v.  Spokane,  20  Wash.  118, 

27  Goldberg    v.    Taylor,    2    Utah,  72  Am.  St.  Eep.  24,  54  Pac.  934. 
486.  29  Walton    v.    Perkins,    33    Minn. 

28  Campbell  v.  Disney,  93  Ky.  41,  357,  23  X.  W.  527. 

18  S.  W.   1,027;   Bogert  v.  City,  27  so  Buhver    v.    Standard,    83    Cal. 

N.  J.  Eq.  568;  Murphy  v.  Sears,  589,  23  Pac.  1,102;  Curtis  v.  Sutler, 
11    Ore.    127,    4    Pac.    471.      It    is       15  Cal.  289. 


§  1179  merwine's  trial  of  title  to  l.\.nd.  860 

Sec.  1179.     Sufficiency  of  the  allegations  of  the  petition  to 
quiet  title. 

A  petition  which  alleges  that  the  plaintiff  claims  the  title 
in  fee  simple  to  the  lands  in  controversy,  describing  them, 
and  is  in  the  actual  possession  thereof,  that  the  defendants 
claim  an  estate  therein  adverse  to  the  plaintiff,  the  nature  of 
which  is  set  out  in  general  language,  and  then  prays  that 
the  defendants  and  each  of  them  may  he  required  to  set 
forth  the  nature  of  their  respective  claims  to  said  premises, 
that  this  court  decree  that  plaintiff's  claim  and  title  to  said 
premises  is  valid  and  perfect,  that  the  defendants  and  each 
of  them  have  no  right  to  any  claim  thereto,  and  that  they 
and  each  and  every  one  of  them  have  no  estate  or  interest  in 
said  premises,  or  any  part  thereof,  and  that  they  and  each 
of  them  be  perpetually  barred  and  enjoined  from  asserting 
any  claim  to  said  premises  adverse  to  that  of  the  plaintiff, 
and  for  such  other  relief  as  may  be  equitable  and  proper 
and  for  costs,  will  be  held  sufficient  under  Section  6121, 
Snyder's  Statutes,  Section  4787,  Wilson's  Statutes,  when  such 
petition  is  attacked  by  demurrer  on  the  ground  that  it  fails 
to  state  facts  sufficient  to  constitute  a  cause  of  action.^^ 

In  commenting  upon  what  the  petition  should  contain,  the 

court    of    another    State,    whose    code    of   civil    procedure    is 

;    similar  to  that  of  this  State,  has  said  that  the  plaintiff  must 

state  the  facts   constituting  his  cause  of  action  in  ordinary 

\  and  concise  language.     It  must  allege  a  primary  right  pos- 

I  sessed  by  plaintiff  and  a  corresponding  duty  devolving  upon 

I  the    defendant,    a    delict    or   wrong    done    by    the    defendant 

:  which  consists  of  a  breach  of  such  primary  right  and  duty, 

j  and  a  remedial  right  in  favor  of  the  plaintiff,  and  a  remedial 

duty  resting  on  the  defendant  springing  from  this  delict,  and 

{  finally,  the  remedy  or  relief  itself.     A  petition  must  state  the 

facts  which  are  the  occasion  of  the  primary  right  and  duty 

and  facts  which  constitute  the  defendant's  wrongful  act  or 

31  Lawrence  v.  Estes,  29  Okla.  328,       den,  24  Kan.  662;   \Yomble  v.  Pike, 
116  Pac.  780;  Cartwrighi  v.  McFad-       17  Okla.  122^  87  Pac.  427. 


861  REAL  ACTIONS. — STATUTORY.         §§  1180-1182 

omission.  The  ownership  and  possession  of  the  lands  ar$ 
the  facts  which  entitle  the  plaintiff  to  hold  his  title  and  \ 
possession  in  peace,  and  make  it  the  duty  of  the  defendant 
not  to  cast  a  cloud  upon  his  title,  or  to  interfere  with  his 
possession.  Asserting  a  claim  or  title  adverse  to  the  plain- 
tiff'Ts  a  delict  or  wrong  on  the  part  of  the  defendant.^^ 

The  adverse  claim  of  the  defendant  should  be  averred. 
The  general  language  of  the  petition  is  that  the  defendant 
claims  some  interest,  or  pretended  interest  or  title  in  the 
premises  described  adverse  to  plaintiff,  and  that  the  same 
will  be  forever  barred  unless  set  forth  in  the  action  by  an 
appropriate  pleading.^^ 

Sec.  1180.     Answers  and  cross-petitions  in  the  action. 

Defendants  having  valid  claims  should  assert  them  by 
answers,  or  by  answers  and  cross-petitions,  as  in  actions  in 
other  cases.^* 

Sec.  1181.    A  person  having  no  interest  in  real  estate  cannot 
maintain  the  action  to  quiet  title  thereto. 
A  person  who  has  no  interest  in  the  title  to  real   estate 
cannot  maintain  an  action  to  remove  a  cloud  upon  the  title 
thereto.^^ 

Sec.  1182.  Awarding  costs  when  disclaimer  is  filed  by  a  de- 
fendant. 
Under  the  statute  which  provides  that  where  defendants 
disclaim  any  title  or  interest  in  the  land  or  other  property, 
the  subject-matter  of  the  action,  they  shall  recover  their 
costs,  unless  for  special  reasons  the  court  decides  otherwise. 
(Snyder,  6113;  Wilson,  4779.)  It  has  been  held  that  where  a 
defendant  in  an  action  to  quiet  title  to  real  estate,  desires 


32  Lamb  v.  Boyd,  4  C.  C.  501.  3. ->  Lewis    v.    Clements,    21     Okla. 

33Winemiller     v.     Laughlin,     51  167,    95    Pac.    796.      This    was    an 

O.  S.  421.  action  concerning  land  of  a  citizen 

34Watterson  v.  Ury,  5  C.  C.  347.  of  the  Creek  nation. 


§§  1183-1185      merwine's  trial  <"     title  to  land.  862 

to  be  discharged  without  costs,  he  must  file  an  absolute  and 
unqualified  disclaimer  to  any  title  or  interest  in  the  land 
which  is  the  subject-matter  of  the  action.^'' 

Sec.  1183.     The  nature  and  effect  of  a  decree  quieting-  title. 

The  decree  quieting  title,  like  every  other  judgment  or 
decree  of  court,  is  not  subject  to  collateral  attack.  It  can  be 
impeached  only  by  an  action  brought  for  that  purpose.  The 
action  is  not  merely  to  confirm  possession ;  it  goes  much 
further;  it  determines  all  matters  in  dispute  between  the 
parties  in  the  action  as  to  the  title.  The  action  when  suc- 
cessfully prosecuted  sweeps  away  all  the  liens  and  claims 
of  the  defendant,  and  the  judgment  of  the  court  is  con- 
clusive as  to  all  the  questions  within  the  issue  and  which 
might  have  been  litigated." 

Sec.  1184.    Injunction  against  defendants  may  be  demanded, 

when. 
If  the  plaintiff,  in  his  action  to  quiet  title,  has  made  out  a 
case  entitling  him  to  relief  against  the  claims  of  the  defend- 
ants in  the  action,  he  may  obtain  a  perpetual  restraining 
order  against  the  alleged  claims  of  the  defendants,  provided 
he  has  asked  in  his  prayer  for  relief,  an  injunction.^^ 

Sec.  1185.     The  ordinary  form  for  the  petition  to  quiet  title. 

District  Court,  County,  State  of  Oklahoma. 

— ,  Plaintiff, 

^'s.  No.  . 

,  Defendant. 


PETITION. 

Plaintiff  says  that  he  is  now  and  for  a  long  time  has  been  and 
is  entitled  to  be  in  the  possession  of  certain  real  property,  situ- 

36  Moore  V.  Wallace,  16  Okla.  114,  38  Bartholomew    v.    Lutheran.    35 

82  Pac.  825.  0.  S.  567;   Marsh  v.  Reed,  10  0.  S. 

37Desnoyers  v.  Dennison,  19  C.  C.  47;  Pittsburgh  v.  Railway,  20  C.  C. 

320.  561. 


863  REAL  ACTIONS. — STATUTORY.  §  1186 

ated,  lying  and  being  in  the  county  of  ,  State  of  Okla- 
homa, and  more  particularly  described  as  follows,  to-wit:  (Here 
describe  same)  ;  that  the  said  plaintiff  claims  title  in  fee  to  said 
premises ;  that  the  defendant  aforesaid  claims  an  estate  or  in- 
terest therein  adverse  to  the  said  plaintiff;  that  the  claim  of 
said  defendant  is  without  any  right  whatever,  and  that  said 
defendant  has  not  any  estate,  right,  title  or  interest  whatsoever 
in  said  land  or  premises,  or  any  part  thereof. 

Wherefore,  plaintiff  prays  that  said  defendant  be  required 
by  appropriate  pleading  to  set  forth  in  this  action  his  alleged 
claim  or  interest  in  said  real  estate,  or  be  forever  barred  from 
asserting  the  same;  that  plaintiff's  title  to  said  real  estate  may 
be  forever  quieted,  and  that  he  may  have  such  other  and  further 
relief  as  the  nature  of  the  case  may  require. 


Attorney  for  Plaintiff. 

Sec.  1186.  Form  for  the  petition  to  quiet  title  to  land  de- 
vised to  descend  to  brothers,  etc.,  in  case  of 
death  without  heirs. 

District  Court,  County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

and ,  Defendants. 


PETITION. 

Plaintiff  is  the  owner  in  fee  simple  and  holds  possession  of 
the  following  described  lands  situated  in  County,  Okla- 
homa, to-wit:  (Here  specifically  describe  same),  and  that  the 
title  to  said  land  was  derived  from  his  father, ,  deceased. 

Plaintiff  further  alleges  that  said ,  deceased,  died,  leav- 
ing a  last  will  and  testament,  which  was  on  the  day  of 

,   19 — ,    duly   probated  in   the   county   court   of  

County,  Oklahoma,  and  that  Item  of  said  will  provided 

as  follows : 

''I  will  and  bequeath  to  my  daughter ,  one-half  of  the 

farm  I  now  live  on,  etc.     *     *     *     in  the  event  of  the  death 


§  1187  merwine's  trial  of  title  to  land.  864 

of  S.  M.,  she  leaving  no  legal  heirs,  then  and  in  that  ease,  the 
property  above  willed  is  to  descend  to  her  brothers  and  sisters." 

That  the  defendants,  ,  and  ,  include  all 

those  who  now  would  take  under  said  Item of  said  will  in 

the  contingency  provided  for  by  its  last  clause.  Said  defendants 
claim  an  interest  in  said  premises  adverse  to  plaintiff's  right, 

under  and  by  virtue  of  said  Item  of  said  last  will  and 

testament  of  ,   deceased,   a  copy  of  which  is  above  set 

forth ;  but  said  plaintiff  denies  that  said  defendants,  or  either 
of  them,  have  any  valid  interest  therein,  yet  the  claim  of  de- 
fendants thereto  creates  and  is  a  cloud  on  plaintiff's  title  to  said 
real  estate. 

Wherefore,  plaintiff  prays  that  said  defendants,  and  each  of 
them,  be  required  to  come  into  this  ease  by  appropriate  plead- 
ings, and  set  forth  the  nature  and  kind  of  their  said  interests 
in  and  to  said  real  estate,  or  be  forever  barred  from  asserting 
the  same;  that  plaintiff's  title  to  said  real  estate  may  be  forever 
quieted  and  that  plaintiff  may  have  such  other  and  further 
relief  as  the  nature  of  the  case  may  require. 


Attorney  for  Plaintiff. 


Sec.  1187.    Form  for  the  petition  in  an  action  to  quiet  title 
and  to  enjoin  judicial  sale. 

District  Court,  County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

,  Defendant. 


PETITION. 

Plaintiff  says  that  on  the  day  of  ,  19 — ,  the 

plaintiff  was  and  from  thence  hitherto,  and  still  is,  the  owner 
of  the  following  described  real  estate,  to-wit:  (Here  describe 
same)  ;  that  plaintiff  purchased  said  premises  on  the  date  afore- 
said from  one  for  the  sum  of  $ ,  which  sum  was 

duly  paid  prior  to  the day  of ,.19—,  but  the  legal 


865  REAL   ACTIONS. — STATUTORY,  §  1188 

title  to  said  premises  has  remained  in  said ;  that  on  the 

day  of  ,  19 — ,  one  recovered  a  judgment 

for  the  Slim  of  $ in  the  district  court  of  County, 

Oklahoma,  against  said ,  and  on  or  about  the day 

of  ,  19 — ,  execution  was  issued  on  said  judgment  at  the 

instance  of  the   plaintiff  therein  and  placed  in  the  hands  of 

,  sheriff  of County,  Oklahoma,  who,  on  the 

day  of ,  19 — ,  levied  the  same  upon  said  real  estate  as  the 

property  of  said ,  and  has  advertised  said  real  estate  for 

sale  on  the  day  of  ,  19 — ,  under  said  execution; 

that  said  judgment  is  not  now,  nor  at  any  time  has  been  a  lien 

upon  said  real  estate,  or  any  part  thereof,  as  said ,  since 

the  recovery  of  said  judgment  has  had  no  interest  therein,  what- 
ever, and  the  sale  of  said  real  estate  under  said  execution  will 
cast  a  cloud  on  plaintiff's  title  to  the  same. 

Wherefore,  plaintiff  prays  for  an  order  restraining  the  sale 
of  said  real  estate  under  said  execution,  and  that  on  the  final 
hearing  of  said  cause,  said  injunction  may  be  made  perpetual, 
and  the  defendant  be  forever  enjoined  from  enforcing  said 
judgment  against  said  real  estate;  that  the  title  to  the  same  be 
quieted  and  confirmed  in  the  plaintiff,  and  for  such  other  relief 
as  is  just  and  equitable. 


Attorney  for  Plaintiff. 

Sec.  1188.    Form  for  the  answer  in  action  to  quiet  title  of 
adverse   possession   for  more  than  

years. 

District  Court,  County,  State  of  Oklahoma. 

,  Plaintiff, 

No. . 


vs. 
,  Defendant 


ANSWER. 

Comes  now  the  defendant,  and,  for  answer  to  the  petition 

herein,  alleges  that  on  or  about  the day  of ,  19 — , 

defendant  purchased  said  real  estate  in  said  petition  described. 


§  1189  merwine's  trial  op  title  to  land.  866 

for  a  valuable  consideration,  from  said  ,  and  that  under 

and  hy  virtue  of  said  purchase,  defendant  took  immediate  pos- 
session of  the  whole  of  said  premises,  and  from  that  time  to  the 

commencement  of  said  suit,  and  for  more  than  years 

from  the  taking  of  said  possession,  he  has  been  in  the  uninter- 
rupted, actual,  open,  notorious,  exclusive  and  adverse  possession 
of  the  whole  of  said  premises  under  a  claim  of  ownership  to  the 
same  by  virtue  of  said  purchase,  and  said  defendant  still  con- 
tinues in  the  possession  thereof,  and  was  so  in  possession  of  the 
same  at  the  time  of  the  taking  of  the  deed  to  the  same  from  the 
said . 

Defendant  further  alleges  that  before  plaintiff  parted  with 
any  valuable  consideration  therefor,  the  plaintiff  had  knowledge 
and  notice  of  defendant's  claim  to  the  equities  in  said  premises; 
that  at  the  time  said  defendant  purchased  said  premises  from 

said ,  said had  the  legal  title  thereto,  and  was  the 

owner  thereof  and  had  the  right  to  sell  the  same  to  said  defend- 
ant ;  that  said  ,  however,  neglected  to  make  a  deed  of 

conveyance  to  said  defendant,  and  continued  to  hold  the  title  in 
trust  thereto  for  said  defendant. 

"Wherefore,  defendant,  having  duly  answered  said  petition, 
prays  that  said  petition  may  be  dismissed  and  that  this  defend- 
ant may  go  hence  with  his  costs  and  for  all  proper  relief.* 


Attorney  for  Defendant. 

Sec.  1189.    Form  for  the  judgment  and  decree  of  the  court 
in  the  action  to  quiet  title. 

District  Court  of County,  State  op  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

— ,  Defendant. 


*  Each  of  the  foregoing  forms  1,106  and  1,107  in  Vol.  2  thereof, 
adapted  from  Whittaker's  Code  and  form  No.  594  in  Vol.  1  thereof. 
Forms,  being  forms  numbered  1,103, 


867  REAL   ACTIONS. — STATUTORY  §  1190 

DECREE    OF    COURT. 

This  day  came  the  said  parties  by  their  respective  attorneys, 
said  cause  having  been  regularly  placed  on  the  trial  docket  of 
this  court  at  its  regular  term,  and  said  cause  came  on  to  be 
heard  by  the  court  upon  the  pleadings  and  evidence  adduced  by 
the  parties  respectively,  and  was  argued  by  counsel ;  on  due  con- 
sideration thereof,  and  being  fully  advised  in  the  premises,  the 
court  finds  that  the  plaintiff  is  entitled  to  relief  as  prayed  for  in 
his  petition. 

It  is  Therefore  considered,  ordered  and  adjudged  by  the 
court  that  the  plaintiff  in  his  said  title  and  possession  of  said 
premises  be,  and  he  is,  hereby  quieted  as  against  the  said  claims 
of  said  defendant  of  said  estate  and  interest  in  the  real  property 
described  in  the  petition  adverse  to  him,  and  that  also  plaintiff 
recover  against  said  defendant  his  costs  in  this  behalf  expended, 

taxed  at  $ .  , 

Judge  of  said  Court. 

Sec.  1190.    Procedure  by  which  title  to  real  estate  is  quieted 
— The  form  for  petition. 

In  the  District  Court  of County,  State  op  Oklahoma. 

and ,  Plaintiffs, 

vs.  No. . 

,  as  Administratrix  of  the  Estate 

of ,  Deceased,  and.as  Guardian  of 

the  Minor  Heirs  of  said  Decedent,  and 

,    ,    ,    and 

,  jMinor  Children  of  said  , 


Deceased,  Defendants. 

PETITION. 

The  above  named  plaintiffs  complain  of  the  above  named  de- 
fendants, and  allege : 

That  the  party  defendant,  ,  is,  and  was  at  all  the  times 

hereinafter  mentioned,  since  the  death  of  the  said  ,  the 


§  1190  merwine's  trial  of  title  to  land,  868 

duly  appointed,  qualified  and  acting  administratrix  of  the  estate 
of ,  deceased,  and  she  is,  and  was  at  all  tlie  times  herein- 
after mentioned,  suhseqnent  to  tlie  date  of  the  death  of  said 
decedent,  the  natural  and  legal  guardian  of  the  party  defend- 
ants,    , , , .and , 

That  the  above  named  plaintiffs  are  the  owners  in  fee  simple 
and  in  possession  of  the  following  described  real  estate  located 

in  the  county  of  ,  and  State  of  Okhihoma,  to-wit:   (Here 

describe  it),  together  with  the  improvements  thereon  and  the 
appurtenances. 

Defendants   claim   an   interest   therein   adverse   to   plaintiffs' 
right  in  this,  to-wit : 

On  the  day  of  ,  19—,  plaintiffs  jointly  made, 

executed  and  delivered  to  ,  then  the  husband  of  the  said 

,  and  the  father  of  said  minor  defendants  above  named, 

their  certain  contract  in  writing,  whereby  they  promised,  for 
the  consideration  hereinafter  mentioned,  to  convey  to  the  said 
the  above  described  premises,  by  deed  of  general  war- 
ranty, upon  payment  of  said  consideration  as  hereinafter  stipu- 
lated.    That  said  contract  was,  on  the  day  of  , 

19—,  recorded  in  the  office  of  the  register  of  deeds  of  

County,  Oklahoma,  in  Book ,  at  page . 

That  on  the  date  last  aforementioned  and  in  consideration  of 

the  contract  last  aforementioned,  the  said made,  executed 

and  delivered  to  the  said  plaintiff, ,  his  certain  installment 

note,  in  writing,  dated  on  that  day,  whereby  he  promised  to  pay 

to  the  said  the  sum  of  $ ,  payable  in  installments 

as  follows:  (Here  set  out  installments  and  when  due),  with  in- 
terest on  each  of  said  installments  from  the  date  of  said  note 

until  paid,  at  the  rate  of per  cent,  per  annum.     And  in 

said  note  it  was  agreed  that  if  default  should  be  made  in  the 
payment  of  any  one  of  the  installments,  then  the  whole  amount, 
and  each  and  every  installment  unpaid,  should,  at  the  election 
of  the  legal  holder  of  said  note,  become  then  due  and  payable. 

That  on  the  date  last  aforementioned,  ,  19—,  and  in 

consideration    of    the    contract    last    aforementioned,    the    said 
,  m  addition  to  the  note  last  aforementioned,  also  then 


869  ■  REAL   ACTIONS. — STATUTORY.  §  1190 

made,  executed  and  delivered  to  the  said  plaintiff,  ,  his 

certain  promissory  note  in  writing  dated  on  that  day,  whereby 

he  promised  to  pay  to  the  order  of  said the  principal  sum 

of  $ due  on  the day  of ,  19 — ,  with  interest 

thereon  at  the  rate  of per  cent,  per  annum  from  date  of 

said  note. 

And  the  contract,  made  as  aforesaid  by  the  said  plaintiffs,  for 
an  agreement  relative  to  the  conveyance  of  said  real  estate,  dated 

on  the  said  day  of  ,  19 — ,  recorded  as  aforesaid, 

and  delivered  by  plaintiffs  to  the  said  ,  contained  the 

obligation  only,  that  if  the  above  named  bounden  and 

would  convey  said  premises  by  deed  of  general  warranty, 

and  clear  of  all  incumbrances  unto  the  said  ,  upon  pay- 
ment of  said  consideration  at  the  time  above  stipulated,  then  said 
contract  to  be  void,  otherwise  to  be  and  remain  in  full  force 
and  effect,  the  said  contract  being  a  bond  for  a  deed  from  plain- 
tiffs to  the  said ,  the  terms  of  which  might  be  avoided  by 

plaintiffs  upon  the  nonpayment  of  any  of  the  installments  falling 
due  upon  said  installment  note  at  the  maturity  tnereof,  or  upon 
the  nonpayment  of  the  principal  amount  due  upon  either  of  the 
principal  promissory  notes  aforementioned  at  the  maturity 
thereof. 

That  the  said  died  intestate  on  or  about  the  

day  of ,  19 — ,  in  the  said  county  of ,  and  State  of 

Oklahoma,  leaving  the   said  ,   his   widow,   and  the   said 

,  ,  , and  ,  his  minor  sons  and 

daughters,  the  only  heirs  at  law  of  said  decedent,  and  said 
defendants  are  now  the  only  heirs  at  law  of  said  decedent. 

On  the day  of ,  19 — ,  on  the  aforesaid  note  for 

$ ,  an  installment  thereon  in  the  sum  of  $ became 

due  and  was  not  then  paid,  where])y  all  the  other  unpaid  in- 
stallments on  said  note  became  due  and  payable  at  the  election 
of  the  plaintiffs,  and  thereupon  plaintiffs  made  due  presentation 
of  last  said  note  to  the  said  administratrix  and  legal  representa- 
tives of  said  decedent,  for  payment  of  all  installments  due 
thereon,  and  gave  notice  of  their  election  to  claim  as  due  all 
installments  unpaid  thereon,  and  of  such  legal  representatives 


§  1190  MERiVlKE'S    TRIAL    OF    TITI-E    TO    LAND.  870 

made  due  demand  for  such  payment,  which  payment  was  re- 
fused, and  thereupon  plaintiffs  gave  notice  to  such  legal  repre- 
sentatives of  decedent  that  they  elected  to  avoid  the  conveyance 
of  the  real  estate  described  in  the  aforesaid  contract  under  date 
of ,  19—,  and  thereupon  the  said  contract  which  was  re- 
corded in  the  office  of  the  register  of  deeds  of  County, 

Oklahoma,  on   the   day  of  ,   19 — ,   as  aforesaid, 

became  null  and  void,  and  w'as,  as  aforesaid,  avoided,  and  the 
same  now  has  no  force  or  effect  as  a  legal  contract. 

On  or  about  the  day  of  ,  19 — ,  plaintiffs  and 

defendants  accounted  together  concerning  the  mutual  dealings 
before  this  time  had  between  them  relative  to  said  recorded 
contract  for  conveyance  and  said  promissory  notes,  whereby  a 
mutual  settlement  was  then  had  and  made  between  the  parties 
plaintiff'  and  defendant,  respectively;  and  on  such  settlement 
it  was  found  that  all  payments  which  had  been  made  on  said 

promissory   notes   prior   to    the   day   of   ,    19 — , 

amounted  to  a  sum  nearly  equal  to  the  value  of  the  rents,  income 
and  profits  which  defendants  and  the  estate  of  said  decedent 

had  received  from  said  real  estate  since  the day  of , 

19—;  and  it  was  then  and  there,  at  the  time  last  aforesaid, 
mutually  agreed  by  and  between  the  plaintiff  and  defendants 
that  the  payments  made  as  aforesaid  on  said  notes  should  be  set 
off  against  the  said  rents,  income  and  profits,  and  that  there 
should  be  no  further  liability  from  or  to  the  said  parties  plain- 
tiff or  defendant,  respectively,  on  said  accounts ;  and  thereupon 

the  said ,  for  herself  and  said  estate  and  her  said  wards, 

made,  executed  and  delivered  their  certain  deed,  in  writing, 
thereby  conveying  all  the  right,  title,  interest  and  equity  of  the 
said ,  her  heirs  and  assigns,  in  and  to  the  said  real  prop- 
erty above  described,  as  well  as  the  right,  title,  interest  and 
equity  of  said  minor  children  therein,  to  the  said  plaintiffs  herein, 
and  said  deed  was  duly  recorded  in  the  office  of  the  register  of 

deeds  of County,  Oklahoma,  on  the day  of , 

19—;  and  thereupon  the  said  plaintiffs  surrendered  to  said  de- 
fendants and  to  said  estate  the  aforesaid  promissory  notes ;  and 
in  equity  there  is  now  no  liability  between  the  said  plaintiffs 


871  REAL   ACTIONS. — STATUTORY.  §  1191 

and  defendants  and  the  said  estate,  on  account  of  any  of  the 
aforesaid  contracts  and  notes,  except  in  this,  to-wit : 

The  deed  last  aforesaid  executed  and  delivered  by  the  said 

to  said  plaintiffs,  conveys,  in  la^v,  only  the  right,  title, 

interest  and  equity  of  the  said ,  in  and  to  said  real  estate 

above  described,  and,  the  premises  considered,  said  minor  chil- 
dren of  said  decedent,  ,  have  an  apparent  claim  and  in- 
terest in  and  to  said  real  estate,  but  no  actual  and  real  interest 
therein,  whereby  plaintiffs'  title  in  and  to  said  real  estate 
becomes  clouded. 

Wherefore,  plaintiffs  pray  that  said  claim  of  defendants,  and 
each  of  them,  may  be  adjudged  null  and  void,  and  plaintiffs' 
title  quieted  against  the  same,  and  for  such  other  relief  as  is 

proper. , 

Attorney  for  Plaintiffs. 
State  of  Oklahoma,  County,  ss. : 

,  being  first  duly  sworn,  on  his  oath,  says :  I  am  a  party 

plaintiff  in  the  above  entitled  actior. :  I  have  read  the  within  and 
foregoing  petition,  and  I  know  that  the  declarations  set  forth 
are  true.  . 

Subscribed  and  sworn  to  before  me  this day  of , 

19—.  , 


[Seal.]  Notary  Public. 

jMy  commission  expires . 

Sec.  1191.     Form  for  praecipe  for  summons. 

PRAECIPE   FOR  SUMMONS. 

In  the  District  Court  of County,  State  of  Oklahoma. 

and ,  Plaintiffs, 


vs. 

,  as  Administratrix  of  the  Estate 

of ,  Deceased,  and  as  Guardian  of 

the  Minor  Heirs  of  said  Decedent,  and 

,    ,    ,    and 

■ ,  ]\Iinor  Children  of  said , 


No. 


Deceased,  Defendants. 


§  1192  MER wine's  trial  of  title  to  land.  872 

To  the  ClerJc  of  said  Court: 

Issue  summons  in  the  above  entitled  cause,  pnd  direct  the 

same  to  the  sheriff  of County,  State  of  Oklahoma,  to  or 

for  the  defendants,  ,  as  administratrix  of  the  estate  of 

,    deceased,   and   as   guardian   of   the    minor   defendants 

above  named,  ,  ,  , and  . 


Also  issue  summons  for  each  of  minor  defendants  last  above 
named. 

Amount  claimed,  $ ,  and  interest  from  the  day 

of ,  19 — ,  at per  cent,  per  annum, . 

Action  brought  for  to  quiet  title  to  (Here  describe  real  es- 
tate), in County,  Oklahoma. 

Make  summons  returnable day  of ,  19 — . 

Defendants  required  to  answer  on  or  before  the  day 

of ,  A.  D.  19—. 

Dated  this day  of ,  19 — . 


Attorney  for  Plaintiffs. 

Sec.  1192.     Form  for  the  summons. 

SUIMMONS— UNITED  STATES  OF  AMERICA. 

State  of  Oklahoma,  County,  ss. : 

In  the  District  Court  within  and  for 


County,   State  of  Oklahoma,  Ju- 
dicial   District,    at    the    Courthouse    in 


The  State  of  Oklalioma  to  the  Sheriff  of County  in  said 

State,  Greeting: 

You  are  hereby  commanded  to  notify  the  defendant,  , 

as  administratrix  of  the  estate  of ,  deceased,  and  as  guard- 
ian of  the  minor  heirs  of  said  decedent,  and  ,  , 

, and ,  minor  children  of  said  deceased,  that 


they  have  been  sued  by  the  plaintiffs, and ,  in  the 

district  coart,  sitting  in  and  for  said  county  of ,  and  that, 


873  REAL    ACTIONS. — STATUTORY,  §  1193 

unless  they  answer  by  the day  of ,  19—,  the  peti- 
tion  of   the   said   plaintiffs,   and   ,   against   said 

defendants,  filed  in  the  clerk's  office  of  said  court,  such  petition 
will  be  taken  as  true  and  judgment  rendered  accordingly. 

You  will  make  due  return  of  this  summons  on  the day 

of ,  19—. 

Witness  my  hand  and  seal  of  said  court  affixed  at  my  office  in 
,  County,  State  of  Oklahoma,  this  day  of 


A.  D.  19- 


[SeaIj.]  Clerk  of  the  District  Court. 

By  , 

Deputy. 

State  of  Oklahoma,  County,  ss. : 

Received  this  writ  ,  19—,  and,  as  commanded  therein, 

1  summoned  the  following  persons  of  the  defendants  within 
named  at  the  times  following,  to-wit : 

,  as  administratrix,  ,  19 — . 

■ ,  ,  19-. 

, , , and , ,19—.    The 

said ,  being  the  guardian  of  the  above  named  minors,  by 

delivering  to  each  of  said  defendants,  personally,  in  said  county, 

a  true  and  certified  copy  of  the  within  summons,  with  all  the 

indorsements  thereon. ~  > 

Sheriff. 

Sec.  1193.     Form  for  waiver  of  summons  and  entry  of  ap- 
pearance. 

In  the  District  Court  op County,  State  of  Oklahoma. 

and ,  Plaintiffs, 


vs. 

,  as  Administratrix  of  the  Estate 

of ,  Deceased,  and  as  Guardian  of 

the  Minor  Heirs  of  said  Decedent,  and 
. and 

5  '  ' 

■ ,  ]\Iinor  Children  of  said , 


No. 


Deceased,  Defendants. 


§  1193  merwine's  trial  of  title  to  land.  874 

APPEARANCE    AND   WAIVER   OF    SUMMONS. 

Comes  now  eaeli  of  the  above  named  defendants  in  the  above 
entitled  action,  each  of  whom  here])y  waives  the  issuance  and 
service  of  summons  in  said  action,  and  hereby  voluntarily  enter 

their  appearance  therein,  the  said  appearing  for  herself 

as  widow  and  heir  at  law  of  the  said  decedent,  ,  also  as 

administratrix  of  the  estate  of  said  decedent,  and  as  the  guard- 
ian of  ,  a  minor,  years  of  age;  ,  a  minor, 

years  of  age;   ,   a  minor,  years  of  age; 

,  a  minor, years  of  age,  and  ,  a  minor, 

years   of   age,    and    the   said    minor    defendants    above 

named  who  are  over  the  age  of  twelve  years  hereby  appear  for 
themselves,  respectively,  waiving  the  issuance  and  service  of 
summons  as  aforesaid.  . 


State  of  Oklahoma, County,  ss. : 

Before  me, ,  a  notary  public  in  and  for  said  county  and 

State,  on  this  day  of ,  19 — ,  personally  appeared 

, and ,  to  me  known  to  be  the  identical  per- 
sons who  executed  the  within  and  foregoing  instrument,  and 
acknowledged  to  me  that  they  executed  the  same  as  their  free 
and  voluntary  act  and  deed  for  the  uses  and  purposes  therein 
set  forth. 

Witness  my  hand  and  official  seal  the  day  above  written. 


[Seal.]  Notary  Public. 

My  commission  expires . 


875  REAL   ACTIONS. — STATUTORY.  §§1194,1195 

Sec.   1194.    Form  for  motion  for  appointment  of  guardian 
ad  litem  tor  minor  defendants. 

In  the  District  Court  of County,  State  of  Oklahoma. 

and ,  Plaintiffs, 

vs.  No. . 

,  Administratrix,  et  al.,  Defendants. 

MOTION    FOR    GUARDIAN    AD    LITEM. 

Come  now  the  plaintiffs,  who  ask  the  court  to  appoint  a  guard- 
ian ad  litem  for  minor  heirs  named  in  the  petition  in  the  above 

entitled  action.  ^ 

Attorney  for  Plaintiffs. 

Sec.   1195.     Order  appointing  guardian  ad  litem  for  minor 
defendants. 

In  the  District  Court  of County,  State  of  Oklahoma. 

and ,  Plaintiffs, 


vs.  No. 
,  as  Administratrix  of  the  Estate 


of ,  Deceased,  and  as  Guardian  of 

the  Minor  Heirs  of  said  Decedent,  and 

,    ,    ,    and 

. ,  Minor  Children  of  said , 


Deceased,  Defendants. 

ORDER  APPOINTING  GUARDIAN  AD  LITEM, 

This  cause  came  on  to  be  heard  upon  the  motion  of  plaintiffs 
herein  for  the  appointment  of  a  guardian  ad  litem  to  appear 
herein  for  said  infant  defendants,  and  tlie  same  was  presented 
to  the  court  and  argued  by  counsel,  and,  upon  due  consideration, 


§  1196  merwine's  trial  of  title  to  land.  87G 

said  motion  is  sustained,  and  it  is  ordered  that  be,  and 

he  is,  hereby  appointed  guardian  ad  litem  for  said  infant  de- 
fendants, and  is  required  to  answer  for  them  and  protect  their 

rights.  J 

Judge  of  said  Court. 


Sec.  1196.     The  answer  of  the  guardian  ad  litem. 

In  the  District  Court  op County,  State  of  Oklahoma. 

and ,  Plaintiffs, 

V.9-.  No.  . 

,  as  Administratrix  of  the  Estate 


of ,  Deceased,  and  as  Guardian  of 

the  Minor  Heirs  of  said  Decedent,  and 

,    ,    ,    and 

,  Minor  Children  of  said  , 


Deceased,  Defendants. 

ANSWER    OF    GUARDIAN   AD    LITEM. 

Come  now  the  above  named  minors,  by  ,  guardian  ad 

litem,  and,  for  their  answer,  say  they  deny  all  the  material 
allegations  of  the  plaintiffs'  petition. 

Wherefore,  they  ask  to  go  hence  with  their  costs. 


By 


Guardian  Ad  Litem. 


877  HEAL    ACTIONS. STATUTORY.  §  1197 

Sec.  1197.     The  decree  of  the  court  quieting  title. 

In  the  District  Court  op County,  State  op  Oklahoma. 

and ,  Plaintiffs, 


vs. 

,  as  Administratrix  of  the  Estate 

of ,  Deceased,  and  as  Guardian  of 

the  Minor  Heirs  of  said  Decedent,  and 

,    ,    ,    and 

,  Minor  Children  of  said  , 


No. 


Deceased,  Defendants. 

DECREE    QUIETING    TITLE. 

This  cause  came  on  for  hearing  on  this,  the  day  of 

^  19 — ^  the  same  being  one  of  the  regular  days  of  the 

19 —  Term  of  said  court,  upon  the  pleadings  and  the 


evidence,  it  having  been  made  to  appear  to  the  court,  and  the 
court  finding  that  the  above  named  defendants,  and  each  of 
them,  have  been  duly  and  personally  served  with  summons  and 
notice  of  the  pendency  of  this  cause,  and  that  the  defendant, 

,  as  administratrix  of  the  estate  of ,  deceased,  and 

as  guardian  of  the  minor  children  of  said  decedent,  ,  is 

in  default  for  answer  and  demurrer  herein,  and  that  said  minor 
children,  the  other  defendants  herein,  have  filed  their  answer 
herein,  by  their  guardian  ad  litem, ;  and  the  said  guard- 
ian ad  litem  now  appearing,  and  the  cause  now  coming  on  to  be 
heard  by  the  plaintiffs  and  said  guardian  ad  litem's  voluntary 
appearance  herein  for  the  purpose  of  this  trial,  the  said  trial 
now  proceeds  on  the  pleadings  and  the  evidence ;  and  the  court, 
being  fully  advised  in  the  premises,  further  finds  that  all  the 
allegations  set  forth  in  the  plaintiffs'  petition  are  true. 

It  is  Therefore  considered,  ordered  and  adjudged  by  the 
court  that,  at  the  time  of  the  bringing  of  this  action,  the  said 


§  1197  merwine's  trial  of  title  to  land.  878 

plaintiffs  were  in  possession  of  the  real  property  described  in 
the  petition,  to-wit :  (Here  describe  real  estate),  together  with 
all  the  iinprovoments  thereon  and  the  appurtenances,  and  that 
said  plaintiffs  had  a  legal  estate  therein  and  were  entitled  to 
the  immediate  possession  of  the  same.  That  neither  of  the  said 
defendants,  nor  any  of  them,  have  any  estate  in  any  part  of  tlie 
last  aforesaid  real  property,  and  the  plaintiffs  ought  to  have 
their  title  and  possession  (juieted  as  against  each  and  every  one 
of  said  defendants. 

It    is    Therefore    further   ordered,   adjudged    and    decreed, 

that  the  title  and  possession  of  said  and  in  and 

to,  all  and  singular,  the  real  estate  and  premises  as  above  de- 
scribed, and  as  described  in  the  petition  herein,  be,  and  the  same 
hereby  are  quieted  as  against  the  above  named  defendants  herein, 
and  as  against  each  and  every  one  of  said  defendants,  and 
against  all  persons  claiming  under  said  def(>ndants,  or  any  of 
them,  adversely  to  said  plaintiffs,  and  said  defendants,  and  each 
of  them,  are  hereby  forever  enjoined  from  setting  up  any  claim 
to  said  premises,  or  any  part  thereof,  adverse  to  the  title  and 
possession  of  said  plaintiffs,  their  heirs  or  assigns,  thereto. 

It  is  further  considered,  ordered  and  decreed  by  the  court 
that  the  certain  bond  for  a  deed  which   was   made,   executed 

and  delivered  by  the  said and ,  on  the day 

of  ,  19 — ,  to  ,  and  which  said  bond  was,  on  the 

day  of ,  19 — ,  recorded  in  the  office  of  the  register 

of  deeds  of County,  Oklahoma,  in  Record ,  at  page 

,  be,  and  the  same  is,  hereby  annulled,  avoided  and  held 

to  be  of  no  force  or  effect ;  and  it  is  further  ordered  that 


be,  and  he  is  hereby,  allowed  a  fee  for  his  services  as  guardian 

ad  litem  for  the  minor  defendants  herein  in  the  sum  of  $ , 

to  be  taxed  as  part  of  the  costs  in  this  case. 

It  is  further  considered,  ordered  and  adjudged  by  the  court 
that  the  costs  of  this  action  be  taxed  to  the  plaintiffs  herein. 


Judge  of  said  Court. 


879 


REAL   ACTIONS. — STATUTORY. 


4.     PARTITION. 


(a)    District  Court. 


SECTION 

1198.  Nature    of    the    proceeding — 

Equitable   and   statutory. 

1199.  One  tenant  cannot  effect  par- 

tition by  deed,  conveying 
his  interest  by  metes  and 
bounds. 

1200.  Will      may      be      construed — 

Course  of  descent  and  legal- 
ity of  bequest  determined 
by   partition. 

1201.  Partition      creates      no      new 

titles. 

1202.  Construction   of   partition    by 

mutual  releases. 

1203.  Remainderman  or  reversioner 

cannot  have  partition — ^The 
exception  to  this  rule. 

1204.  Heirs  may  not  have  partition 

of  homestead  occupied  by 
wife   and   family. 

1205.  The   real    estate   must   be   de- 

scribed in  the  petition  to 
partition. 

1206.  The  power  of  a  general  guard- 

ian in  partition  cases. 

1207.  Allegation     as     to     unknown 

owners — Creditors  as  par- 
ties. 

1208.  The  allegations  of  the  answer. 

1209.  The    allegations    of    the    peti- 

tion where  the  executor  or 
administrator  has  charge  of 
the  estate. 

1210.  The  causes  of  action  that  may 

be  joined  with  partition. 

1211.  Sale    in   partition   where   real 

estat«  is  encumbered  by  lien. 

1212.  Pleirs    not    divested    by    fore- 

closure proceedings,  when. 

1213.  Trustees    under    a    will    may 

partition,  when. 

1214.  The  order  of  partition. 

1215.  The    commissioners    in    parti- 

tion. 

1216.  The  fees  of  commissioners. 


SECTION 

1217.  The  duty  of  commissioners  as 

to      allotment      of      special 
tracts   of   land. 

1218.  The  oath  of  the  commissioners. 

1219.  The    report    of    the    commis- 

sioners   in   partition. 

1220.  The  report  may  be  set  aside, 

when. 

1221.  Judgment  upon  the  report  of 

the   commissioners. 

1222.  Party    may    elect   to    take    at 

appraisement,  when. 

1223.  The     property     to     be     sold, 

when. 

1224.  The  sheriff's  return  and  deed. 

1225.  Apportionment    of    attorneys' 

fees  and  taxing  costs. 

1226.  The    powers    of   the    court    in 

partition. 

1227.  The    doctrine    of    lis   pendens 

as  applied  to  partition  suits. 

1228.  Form  for  petition  by  guardian 

for  partition. 

1229.  Form    for    petition    for    equi- 

table partition  when  ad- 
vancements have  been  made. 

1230.  Form    for   petition    where   an 

account  for  rents  and  profits 
is  asked. 

1231.  The  proceeding  by  which  real 

estate  is  partitioned  by  the 
court — The  ordinary  form 
for   partition. 

1232.  Form    for   answer    of    defend- 

ant disclaiming  any  interest 
in  the  real  estate. 

1233.  Form  for  answer  in  partition. 

1234.  Form  for  decree  for  partition. 

1235.  The  writ  of  partition  directed 

to  the  sheriff  by  the  clerk. 

1236.  The  oath  of  the  commissioners. 

1237.  The   commissioners'  report  of 

their  proceedings. 

1238.  The    sheriff's    return    of    his 

proceedings. 


§  1198  MER wine's   trial   of   title   to  Lu\ND.  880 

SECTION  SECTION 

1239.  Confirmation    of    commission-       1245.  Entry    confirming    report     of 

ers'  report.  appraisement    and    ordering 

1240.  The  sherifl's  deed.  sale  of  real  estate. 

1241.  Commissioners'     report    when       124G.  The    order    of    sale    from    the 

the      property      cannot      be  clerk  to  the  sherifT. 

divided    and    must    be    sold.  1247.  Legal  notice  of  sale. 

1242.  Sherifl's   return.  1248.  Proof  of  publication. 

1243.  Election    by    one    of    the    par-  1249.  Sheriff's  return. 

ties    to   take    real   estate   at       1250.  Confirmation     of     sale,    order 
the   appraisement.  for  distribution  and  deed. 

1244.  Entry    confirming   sale,    order 

of  deed  and   distribution  of 
funds. 

Sec.  1198.  Nature  of  the  proceeding — Equitable  and  statu- 
tory. 

The  procedure  by  which  the  share  of  one  of  the  several 
owners  of  real  estate  in  common  is  set  off  to  him  in  severalty 
by  the  courts,  may  be  either  a  proceeding  in  chancery,  or  it 
may  be  a  statutory  proceeding.  While  the  distinction  be- 
tween the  proceedings  in  chancery  and  the  proceeding  under 
the  statute  is  well  defined,  yet  the  distinction  is  not  a  matter 
of  much  importance  to  the  practitioner.  Especially  is  this 
so  since  both  are  worked  out  by  the  same  court.  But  cases 
have  arisen  in  the  practice  in  partition  proceedings  where 
it  was  necessary  for  the  courts  and  those  conducting  the 
proceedings  to  know  the  distinction.  In  cases  where  the 
title  is  in  question  and  equitable  rights  are  involved,  it  is 
the  chancery  side  of  the  court  that  is  appealed  to  for  the 
partition.  The  partition  statutes  have  in  no  wise  abridged 
the  equitable  powers  of  the  chancellor  in  partition  pro- 
ceedings. 

At  law,  in  partition,  the  sheriff  could  only  pward  an 
actual  division  of  the  land.  Inequality  in  the  ownership  of 
the  lands  could  not  be  adjusted,  especially  in  cases  where 
compensation  was  necessary  to  do  exact  justice  to  the 
co-owners.  Later,  when  a  parent  had  given  lands  or  money 
to  a  child  as  a  portion  of  his  estate,  equitable  interference 
became  necessary  to  do  exact  justice  to  all  of  his  children 
in  the  final  distribution  of  his  real  estate.  In  such  cases, 
courts  of  equity  award  owelty  by  partition.     As  in   almost 


881  REAL   ACTIONS. — STATUTORY.  §  1198 

every  ease  of  the  origin  of  an  equitable  remedy,  equitable 
partition  grew  out  of  the  demands  of  justice.^ 

The  power  of  the  chancellor  is  far-reaching  in  equitable 
partition.  It  has  been  well  said  by  an  eminent  jurist  that 
equity  courts  have  long  exercised  the  power  to  decide  finally 
upon  the  rights  of  adverse  claimants  to  real  estate  where 
the  nature  of  the  controversy  properly  called  for  the  inter- 
ference of  a  chancellor. 

A  bill  to  establish  and  enforce  a  trust  gave  him  jurisdic- 
tion to  hear  and  determine  its  existence  and  extent,  and  to 
enforce  it,  in  a  proper  case,  by  compelling  a  conveyance  by 
the  defendant  as  trustee,  notwithstanding  his  answer  denying 
the  entire  title  of  the  plaintiff.  In  this  class  of  cases,  as  well 
as  in  a  number  of  others,  the  fact  that  a  decision  of  a  judge, 
without  a  jury,  might  divest  one  in  possession  of  real  estate, 
does  not  affect  the  jurisdiction.  The  principle  controlling  is 
well  known.  Where  a  party  cannot  have  adequate  and  com- 
plete remedy  at  law,  he  may  apply  in  equity;  and  the  chan- 
cellor, in  such  case,  taking  jurisdiction,  retains  it  so  far  as 
may  be  necessary  to  furnish  relief  adequate  and  complete, 
A  careful  consideration  of  the  position  and  relations  of 
tenants  in  common  of  realty  will  satisfy  the  mind  that  when 
a  cotenant  has  gone  into  possession  and  refuses  to  recognize 
the  title  of  the  owners  of  the  other  undivided  shares,  an 
ordinary  suit  at  law  will  not  furnish  to  them  adequate  and 
complete  relief.  In  the  proceeding  for  partition  the  court 
could  not  exercise  chancery  or  equitable  powers  and  was 
limited  to  the  mode  and  extent  provided  by  statute.  There 
would  seem  to  be  good  reason  for  holding  that  those  statu- 
tory powers  could  only  be  exercised  on  behalf  of  parties 
whose  title  at  law  was  disputed.  But  a  civil  action  seeking 
equitable  partition,  together  with  an  account  of  rents  and 
profits,  properly  invokes  the  chancery  powers  of  the  courts.^ 

1  Linton    v.    Lavcock,    33     0.  S.  2  Hogg  v.  Bierman,   41    0.   S.  81; 

128;      McMasters      v.      Smith,  5       Perry  v.  Richardson,  27  0.  S.  110. 

W.    L.    M.     (Ohio),    28;     Perry  v. 
Richardson,  27  0.  S.   110. 


§§  1199-1201       merwine's  trial  of  title  to  land.  882 

Sec.  1199.  One  tenant  cannot  effect  partition  by  deed,  con- 
veying his  interest  by  metes  and  bounds. 
One  tenant  cannot  accomplish  a  partition  by  selling  and 
conveying  his  interest  to  another  by  metes  and  bounds.  Such 
purchaser,  instead  of  taking  an  interest  by  metes  and  bounds, 
will  take  the  undivided  interest  of  the  grantor.  The  pur- 
chaser will  hold  the  interest  purchased  as  a  tenant  in  common 
with  the  original  owners.^ 

Sec.  1200.  Will  may  be  construed — Course  of  descent  and 
legality  of  bequest  determined  in  partition. 

It  sometimes  happens  that  by  the  terms  of  a  will  an 
estate  in  real  estate  is  devised  in  such  a  manner  that  only  a 
construction  of  the  terms  of  the  will  can  enable  a  division 
to  be  made  of  it,  or  the  course  of  descent  under  the  terms 
of  the  will  can  decide  how  partition  can  be  made ;  and  even 
in  some  cases,  the  validity  of  a  provision  of  the  will  can  be 
determined  in  a  partition  case.* 

In  such  suit  the  rule  that  the  intention  of  the  testator  must 
govern,  applies  to  all  partition  proceedings  in  which  the 
construction  of  a  will  is  involved,  but,  where  the  intention  re- 
mains in  doubt,  resort  must  be  had  to  settled  rules  of  con- 
struction for  aid  in  the  solution  of  the  difficulty.^ 

Sec.  1201.     Partition  creates  no  new  titles. 

"Where  tenants  in  common  partition  ancestral  property  by 
deeds,  reciting  as  consideration  for  the  same  the  full  value 
of  the  land,  such  consideration  may  be  shown  by  parol  to 
be  the  actual  amicable  partition ;  and  the  property  in  an 
amicable  partition  of  this  kind,  so  coming  to  one  of  the  heirs 
as  a  tenant  in  common  of  ancestral  lands,  will  still  be  re- 


sDennison  v.  Foster,  9  Ohio,  130;  590;  Curran  v.  Taylor,  19  Ohio,  56; 

Lessee  v.  Sayre,  2  Ohio,  110;  Lessee  Helmig  v.  Meyer,  8  N.  P.  31;  Staple- 

V.  Emerich,   6   Ohio,  391.  ton  v.  Ellison,  21   0.   S.  527. 

4  Perry   v.    Richardson,    27    0.    S.  s  Linton    v.    Laycock,    33     0.    S. 

110;    Patton    v.    Patton,    39    0.    S.  128. 


883  REAL    ACTIONS. — STATUTORY.  §  1202 

garded  as   ancestral  property,   and  will  pass  as  such  under 
the  statute  of  descent  and  distribution." 

But  where  the  partition  is  made  by  the  court,  and  the 
real  estate  is  sold  by  the  sheriff,  the  ancestral  quality  of  the 
estate  is  broken.  And  a  party  electing  to  take  the  property 
at  its  appraisement,  takes  his  own  share  as  ancestral  prop- 
erty and  the  shares  of  the  others  by  purchase.'^ 

As  the  courts  of  this  State  are  not  concerned  with  the 
question  of  ancestral  property,  as  in  the  cases  just  cited,  the 
question  here  is  brought  up  only  for  the  purpose  of  showing 
that  partition  does  not  create  any  new  titles ;  for  the  pro- 
ceeding operates  upon  the  possession ;  dissolves  the  unity 
before  existing  and  enables  each  of  the  owners  to  know, 
possess  and  enjoy  his  own  share  of  the  common  estate  in 
severalty.  This  construction  preserves  all  the  analogies  of 
the  law,  and  is  fully  sustained  by  the  adjudged  cases.  It  is 
well  settled  that  such  a  proceeding  does  not  decide  title  or 
create  any  new  title.  It  merely  dissolves  the  tenancy  in 
common  and  leaves  the  title  as  it  was,  except  to  locate  such 
rights  as  the  parties  may  have,  respectively,  in  distinct  parts 
of  the  premises,  and  to  extinguish  it  in  all  others.^ 

Sec.  1202.    Construction  of  partition  by  mutual  releases. 

When  partition  is  made  by  mutual  releases  they  should  be 
made  and  construed  together  in  the  light  of  the  circum- 
stances attending  their  execution,  and  it  is  competent  to  show 
their  only  purpose  was  to  accomplish  the  partition,  and  no 
other  consideration  passed  between  the  parties,  though  a 
pecuniary  consideration  be  expressed  in  the  deed.^ 


6  Carter  v.  Day,  29  0.  S.  96.  Wend.   367;    Clapp   v.   Bromagham, 

7  Freeman  v.  Allen,  17  0.  S.  527.  9    Cow.    561;    Culver    v.    Culver,    2 
sTabler    v.     Wiseman,     2     0.     S.  Root,    278;    Youngs   v.    Heffner,    36 

208;     Goundie    v.    Northampton,    7  O.  S.  237. 

Barr,   278;    MeClure  v.   McClure,   2  s  Carter    v.    Day,    59    0.    S.    96; 

Harris,   137;   Bonner  v.  Proprietors,  White    v.    Brocow,    14    0.    S.    339; 

7  Mass.  475;  Wills  v.  Price,  9  Mass.  Dawson  v.  Lawrence,  13  Ohio,  544. 
508;      Brownell     v.      Brownell,      19 


§  1203  MER wine's  trial  of  title  to  land.  884 

Where  land  is  purchased  with  an  undivided  fund  in  which 
the  parent  has  a  life  estate  and  the  children  a  remainder, 
and  a  conveyance  is  made  to  the  former,  the  title  will  be 
held  in  trust  for  the  latter,  subject  to  the  life  estate;  and 
upon  the  termination  of  the  life  estate  they  will  hold  the 
equitable  title  as  tenants  in  common  in  the  proportion  of 
their  respective  shares  in  the  fund,  and  such  tenants  in 
common  are  entitled  to  partition/" 

Sec.  1203.     Remainderman  or  reversioner  cannot  have  parti- 
tion— The  exception  to  this  rule. 

The  result  of  the  adjudged  cases,  as  well  as  the  purpose 
of  the  partition  statute,  and  the  object  of  the  whole  pro- 
ceeding seem  to  be  to  secure  to  the  tenant  the  exclusive 
possession  of  his  share  of  the  joint  property;  and  where  no 
such  possession  can  follow  the  judgment,  no  reason  is  shown 
for  invoking  the  aid  of  the  law,  or  calling  the  other  owners 
into  court,  and  subjecting  them  to  the  expense  incident  to 
the  proceeding,  much  less  to  compel  them  to  submit  to  a 
forced  sale  of  their  interest,  under  circumstances  which  can 
hardly  fail  to  result  in  a  sacrifice.  Before  this  can  be  done, 
the  applicant  must  show  that  he  is  submitting  to  the  incon- 
venience of  joint  possession,  and  that  to  protect  him  in  the 
actual  enjoyment  of  what  belongs  to  him,  it  is  necessary  to 
interfere  with  the  rights  and  interests  of  his  cotenants. 
Until  this  is  shoAvn,  there  is  no  joint  possession  to  sever,  and, 
consequently,  nothing  upon  which  the  judgment  of  the  court 
can  legitimately  operate.  The  primary  object  of  the  parti- 
tion statute  is  to  effect  an  actual  division  of  the  property 
among  the  owners,  and  it  is  only  where  this  cannot  be  done 
without  manifest  injury  to  the  value  thereof,  that  election  or 
sale  is  allowed.  In  making  such  division  the  commissioners 
are  to  have  due  regard  to  the  improvements,  situation  and 
quality  of  the  different  parts  of  the  estate,  and  this  is  to  be 
done  on  actual  view.     A  large  part  of  its  value  may  then 

10  Roberts  v.  Remy,  56  0.  S.  249. 


885 


REAL   ACTIONS. — STATUTORY.  §  1204 


consist  of  buildings  or  other  improvements,  wliicli,  before  the 
expiration  of  the  life  estate,  may  be  entirely  destroyed  or 
become  comparatively  valueless.  If,  instead  of  the  com- 
parative certainty  which  this  section  enjoins,  the  commis- 
sioners were  permitted  to  speculate  on  its  probable  condition 
at  the  termination  of  the  life  estate,  the  blindest  conjecture 
would,  unavoidably  be  substituted,  and  the  chances  of 
equitable  division  much  diminished." 

But  one  who  owns  in  fee  simple  an  undivided  half  in- 
terest in  real  estate  can  sue  to  compel  partition  as  against 
his  cotenants  who  have  only  a  life  interest  in  the  other 
undivided  half.^^ 

Sec.  1204.  Heirs  may  not  have  partition  of  homestead  occu- 
pied by  wife  and  family. 
Where  a  homestead  is,  by  order  of  the  probate  court,  set 
aside  to  the  use  of  the  wife  and  family  of  a  deceased  hus- 
band, the  same  cannot  be  partitioned  at  the  suit  of  some  on 
the  adult  heirs.  The  courts  of  other  States  having  a  home- 
stead law  similar  to  ours  have  so  held." 

11  Fritz   V.    Fritz,    16    0.    S.   218;  12  Johnson    v.     Brown,     74     Kan. 

Stevens  v.  Enders,  1  Green's  N.  J.  R.  346,  86  Pac.  503 ;   Kinkead  v.  Max- 

271;   Brown  v.  Brown,  8  N.  H.  93;  well,  75  Kan.  50,  38  Pac.  5^23. 

Striker  v.  Mott,  2  Paige,  389;  Wood  ^^  Funk   v.   Baker,   21    Okla.    402, 

V     Clute,    1    Sand.    Chy.    Rep.    202;  96  Pac.  608;   Fore  v.  Fore,  2  N.  D. 

Hieatt   V.   Black,    14   C.   C.    (Ohio),  260,    50    N.    W.    712;    Nicholas    v. 

194-    Tabler    v.    Wiseman,   2    0.    S.  Purezell,   21    la.   256,   89    Am.   Dec. 

208.      The  owners   of   a  fee   subject  572;    21   Cyc.  594;    15   Am    &   Eng. 

to  a  life  estate  may  divide  the  land  Ency.    of    Law,    699.      Where    the 

in   severalty  before  the  termination  head  of  a  family  dies  leaving  chil- 

of  the  life  estate,  and  on  such  par-  dren,  some  of  whom  are  minors  who 

tition   the  former  cotenancy  of  the  occupy  the  homestead,  it  cannot  be 

fee  is   at   an   end,   and   each   owner  partitioned    against   their    objection 

may    then    take    title    to    the    life  until  they  become  of  age^    Rowe  v. 

estate  in  his  own  portion,  and  hold  Rowe,   61   Kan.       2    60  Pac.     .049; 

the   entire    estate    adversely   to   the  Hofer  v.  Hofer.  33  Kan.  449,  6  Pac. 

other.      McCullough    v.    Finley,    69  537. 
Kan.  705,  77  Pac.  696. 


§§  1205-1207       merwine's  trial  of  title  to  land.  886 

Even  in  case  where  the  homestead  of  a  deceased  husband, 
while  occupied  by  the  surviving  wife  as  a  homestead  for 
herself  and  family,  it  cannot  be  partitioned  by  an  adult  heir.^* 

Sec.  1205.     The  real  estate  must  be  described  in  the  petition 
to  partition. 
When  the  object  of  an  action  is  to  effect  the  partition  of 
real  property,   the  petition  must  describe   the   property   and 
the  respective  interests  of  the  owners  thereof,  if  known.* 

Sec.   1206.     The  power   of   a  general   guardian   in   partition 
cases. 
The  guardian  of  a  ward  has  statutory  power  to  join  in  and 
assent   to  the   partition   of   real   estate  of  the  ward,   whenever 
such  assent  may  be  given  by  any  person." 

Sec.  1207.  Allegation  as  to  unknown  owners— Creditors  as 
parties. 

If  the  number  of  shares  or  interests  is  known,  and  the 
owners  thereof  are  unknown,  or  if  there  are,  or  are  supposed 
to  be  any  interests  which  are  unknown,  contingent  or  doubt- 
ful, these  facts  must  be  set  forth  in  the  petition  with  reason- 
able certainty.^^ 

Creditors  having  a  specific  or  general  lien  on  all  or  any 
portion  of  the  property,  may  be  made  parties.'' 

14  Miller    v.    Hassman,    24    Okla.  is  Snyder,    5,493;    Wilson,    1,835; 

381,  103  Pac.  577.  ^^'^-  6,004,  Dakota  Code   (1887). 

♦Snyder,    6,135;     Wilson,    4,801;  is  Snyder,    6,136;    Wilson,    4,803; 

Kansas,     5,101      (1901),     identical;  Kansas,  4,718   ( 1889),  identical. 

Nebraska,  1,750   (1907).     A  petition  i7  Snyder,    6,137;    Wilson,   4,803; 

for     partition,     tlie     allegations    of  Kansas,  5,103   ( 1901) ,  identical.     In 

which    bring    the    case    within    the  an    action   between    the   heirs    of    a 

reason    of    the    code    requiring    the  decedent  to  partition  his  real  estate, 

interests   of    the    owners    to   be    de-  the  general  creditors  are  not  proper 

scribed  by  setting  forth  the  convey-  parties  and  the  administrator  should 

ances   from   which    the   interests   of  be  joined  under  exceptional  circum- 

the    several    parties    appear,    is   not  stances.     Sheehan  v.  Allen,  67  Kan. 

demurrable  because  it  fails  to  allege  712,  74  Pac.  245. 
in  terms  the  respective  interests  of 

the  owners.     Johnson  v.  Brown,  74-  ^ 
Kan.   346,  86   Pac.  503. 


887  REAL   ACTIONS. — STATUTORY.  §§  1208-1211 

Sec.  1208.     The  allegations  of  the  answer. 

The  answer  of  defendants  must  state,  among  other  things, 
the  amount  and  nature  of  their  respective  interests.  They 
may  also  deny  the  interests  of  any  of  the  plaintiffs  or  any 
of  the  defendants.^* 

Sec.  1209.  The  allegations  of  the  petition  where  the  executor 
or  administrator  has  charge  of  the  estate. 
Where  an  executor  or  administrator  has  been  appointed 
for  the  estate,  the  petition  should  allege,  and  the  evidence 
should  show  that  the  decedent  left  sufficient  personal  prop- 
erty to  pay  all  debts,  including  costs  of  administering  his 
estate.^^ 

Sec.  1210.     The  causes  of  action  that  may  be  joined  with 
partition. 

In  the  action  in  partition  it  is  not  necessary,  as  in  some 
jurisdictions,  to  allege  that  plaintiff  is  in  possession  of  the 
real  estate  to  be  partitioned.  He  may  allege  that  he  is  not 
in  possession  and  that  someone  is  holding  it  adversely  to 
him.  He  may  unite  in  his  petition  a  cause  of  action  for  the 
recovery  of  the  real  estate,  a  cause  of  action  for  the  rents 
and  profits  and  a  cause  of  action  for  the  partition  thereof.^** 

Sec.  1211.    Sale  in  partition  where  real  estate  is  encumbered 
by  lien. 

As  shown  above,  the  statute  authorizes  anyone  holding  a 
lien  of  any  kind  on  real  estate  sought  to  be  partitioned,  to 
be  made  parties  defendant.    Where  the  property  sought  to  be 

18  Snyder,  G,138;  Wilson,  4,804;  cotenants  holding  adversely,  with- 
Kansas,   4,720    (1889).  out    joining    with    the    demand    for 

19  Sample  v.  Sample,  34  Kan.  73,  partition  a  eause  of  action  for  pos- 
8  Pac.  248;  O'Keefe  v.  Behrens,  73  session.  Denton  v.  Fyfe,  65  Kan.  1, 
Kan.  460,  85  Pac.  555.  68   Pac.   1,074;    Moorhead  v.  Robin- 

20  Scarborough  v.  Smith,  18  Kan.  son,  68  Kan.  534,  75  Pac.  603. 
399.  A  joint  tenant,  or  tenant  in  One  out  of  possession  cannot  main- 
common,  out  of  possession,  cannot  tain  partition  for  real  property 
bring  suit  for  partition  against  his  against  one  in   possession   claiming 


§§  1212-1214         merwine's  trial  of  title  to  land.  888 

partitioned  is  encumbered  by  various  liens,  the  petition 
should  allege  that  these  parties,  naming  them,  claim  some 
lien  or  interest  in  the  premises,  and  the  petition  should  ask 
that  they  be  made  parties  to  the  action,  and  be  required  to 
come  into  the  case  by  appropriate  pleading,  and  assert  the 
interest  they  may  have  therein,  under  penalty  of  being 
.forever  barred  from  asserting  their  claim  or  right  to  said 
real  estate. 

The  court  has  the  power,  in  such  instances,  to  order  the 
real  estate  sold,  free  of  all  liens  and  interests  of  the  various 
parties,  and  distribute  the  proceeds  of  such  sale  to  the  par- 
ties in  the  order  of  their  respective  priorities.-^ 

Sec.  1212.  Heirs  not  divested  by  foreclosure  proceedings, 
when. 
In  order  to  cut  out  all  interest  of  all  parties  to  real  estate 
in  foreclosure,  or  other  judicial  proceeding,  it  is  necessary 
to  bring  such  parties  into  the  case,  under  penalty  of  for- 
feiting their  rights.  If  an  heir  to  property  sold  under 
foreclosure,  or  other  judicial  proceeding  is  not  so  made  a 
party,  he  may,  after  the  sale,  compel  the  purchaser  at  such 
sale  to  allow  partition. ^- 

Sec.  1213.    Trustees  under  a  will  may  partition,  when. 

"Where  a  will  vests  a  trustee  with  title  to  real  estate,  with 
power  to  sell  it  and  divide  the  proceeds,  such  trustee  may 
maintain  an  action  to  partition  it."^ 

Sec.  1214.    The  order  of  partition. 

After  the  interests  of  all  parties  have  been  ascertained,  the 
court  is  required  to  make  an  order  specifying  the  interests  of 

title  to  the  entire  property,  unless  he  -^  Hagen    v.    Webb,    65    Kan.    38, 

first  establishes  his  title  and  right       08  Pac.  1,096. 

of    possession    to   a    portion    of   the  ~-  Curtis  v.  Parker,  29  Kan.  93. 

property  in  an  action  for  the  recov-  23  Xoecker    v.    Xoecker,    66    Kan. 

ery  of  real   property,  or  joins  such       347,  71  Pac.  815. 

cause  of  action  with  his  action  for 

partition.     Chandler  v.  Richardson, 

65  Kan.  152,  69  Pac.  168. 


889  REAL  ACTIONS. — STATUTORY.         §§  1215-1219 

the   respective   parties,    and    directing   partition   to   be   made 
accordingly.^* 

Sec.  1215.    The  commissioners  in  partition. 

Upon  making  such  order  the  court  must  appoint  three 
commissioners  to  make  partition  into  the  requisite  number  of 
shares.^'' 

Sec.  1216.    The  fees  of  commissioners. 

Each  commissioner  for  partition  of  real  estate  is  entitled 
to  receive  for  each  day  two  dollars;  traveling  fees  the  same 
as  are  allowed  to  sheriffs;  but  this  action  does  not  limit  the 
right  of  the  parties  to  agree  on  a  higher  rate  of  compensation 
for  commissioners  in  any  case.^^ 

Sec.  1217.    The  duty  of  commissioners  as  to  allotment  of  spe- 
cial tracts  of  land. 
For  good  and  sufficient  reasons  appearing  to  the  court,  the 
commissioners  may  be  directed  to  allot  particular  portions  to 
any  one  of  the  parties.^ 


27 


Sec.  1218.     The  oath  of  the  commissioners. 

Before  entering  upon  their  duties,  such  commissioners  are 
required  to  take  and  subscribe  an  oath  that  they  will  per- 
form their  duties  faithfully  and  impartially,  and  to  the  best 
of  their  ability." 

Sec.  1219.    The  report  of  the  commissioners  in  partition. 

The  commissioners  must  make  partition  of  the  property 
among  the  parties  according  to  their  respective  interests,  if 


24  Snyder,    6,139;    Wilson,    4,805;  27  Snyder,    6,141;    Wilson,    4,807; 
Kansas,  4,721    (1889).  Kansas,  4,723    (1889). 

25  Snyder,    6,140;    Wilson,    4,806;  28  Snyder,    6,142;    Wilson,    4,808; 
Kansas,  4,722    (1889).  Kansas,  4,727    (1889). 

26  Snyder,    3,408;    Wilson,    3,034; 
Act  of  IVIarch  12,   1887. 


§§  1220-1223         merwine's  trial  of  title  to  land.  890 

such  partition  can  be  had  without  manifest  injury.  But  if 
such  partition  cannot  be  made,  the  commissioners  are  re- 
quired to  make  a  valuation  and  appraisement  of  the  property, 
and  to  make  a  report  of  their  proceedings  to  the  court 
forthwith.'^ 

Sec.  1220.     The  report  may  be  set  aside,  when. 

Any  party  may  file  exceptions  to  the  report  of  the  com- 
missioners, and  the  court  may,  for  good  cause,  set  aside  such 
report,  and  appoint  other  commissioners,  or  refer  the  matter 
back  to  the  same  commissioners.^" 

Sec.  1221.     Judgment  upon  the  report  of  the  commissioners. 
If  partition  be  made  by  the  commissioners  and  no  excep- 
tions are  filed  to  their  report,  the  court  will  render  judgment 
that  such  [petition]  be  and  remain  firm  and  effectual  forever.'^ 

Sec.  1222.  Party  may  elect  to  take  at  appraisement,  when. 
If  partition  cannot  be  made,  and  the  property  has  been 
valued  and  appraised,  any  one  or  more  of  the  parties  may 
elect  to  take  the  same  at  the  appraisement,  and  the  court 
may  direct  the  sheriff  to  make  a  deed  to  the  party,  or  par- 
ties, so  electing,  on  payment  to  the  other  parties  of  their 
proportion  of  the  appraised  value.^^ 

Sec.  1223.     The  property  to  be  sold,  when. 

If  none  of  the  parties  elect  to  take  the  property  at  its 
valuation,  or  if  several  of  the  parties  elect  to  take  the  same 


29  Snyder,    6,143;    Wilson,    4,809;  cannot    be    made    without    manifest 
Kansas,  4,725    (1889).  injury,   it   is  error  to  direct  a   sale 

30  Snyder,    6,144;    Wilson,    4,810;  of    the    land    until    the    parties    in- 
Kansas,  4,726    (1889).  terested  have  been  afforded  reason- 
si  Snyder,    6,145;    Wilson,    4,811;  able  time  to  elect  to  take  the  land 

Kansas,  4,727    (1889).  at  its   appraised  value,  the  statut  > 

32  Snyder,    6,146;    Wilson,    4,812;  fixinor    no    time   within   which    sui^^ 

Kansas,   4.728    (1889).      Whore   the  election   shall   be   made.      Morris      . 

commissioners  report  that  partition  Tracy,  58  Kan.   137,  48  Pac.  571. 


891  REAL  ACTIONS. — STATUTORY.         §§  1224-1226 

at  the  valuation,  in  opposition  to  each  other,  the  court  must 
make  an  order  directing  the  sheriff  of  the  county  to  sell  the 
same  in  the  same  manner  as  in  sales  of  real  estate  on  execu- 
tion, but  no  sale  can  be  made  at  less  than  two-thirds  of  the 
valuation  placed  on  the  property  by  the  commissioners.^^ 

Sec.  1224.     The  sheriff's  return  and  deed. 

The  sheriff  shall  make  return  of  his  proceedings  to  the 
court,  and  if  the  sale  made  by  him  be  approved  by  the 
court,  the  sheriff  must  then  execute  a  deed  to  the  purchaser, 
upon  the  payment  of  the  purchase  money,  or  securing  the 
same  to  be  paid  in  such  manner  as  the  court  may  direct.^* 

Sec.  1225.  Apportionment  of  attorneys'  fees  and  taxing 
costs. 

The  court  making  partition  must  tax  the  costs,  attorneys' 
fees  and  expenses,  which  may  accrue  in  the  action,  and 
apportion  the  same  among  the  parties  according  to  their 
respective  interests,  and  may  award  execution  therefor  as  in 
other  cases.^^ 

Where  the  property  cannot  be  divided  by  metes  and 
bounds,  and  it  is  sold,  out  of  the  proceeds  of  the  sale  there 
must  be  paid  the  costs  of  the  proceeding,  including  attorney 
fees,  before  the  proceeds  may  be  divided  among  the  heirs.^^ 

Sec.  1226.     The  powers  of  the  court  in  partition. 

The  court  has  full  power  to  make  any  order  not  incon- 
sistent with  the  provisions  of  this  article,  that  will  be  neces- 
sary to  make  a  just  and  equitable  partition  between  the 
parties  and  secure  their  respective  interests.^^ 


33  Snyder.    6,147;    Wilson,    4,813 
Kansas,  4,729    (1889). 

34  Snyder,    6,148;    Wilson,    4,814 
Kansas,   4,730    (1889). 

35  Snyder,    6,149;    Wilson,    4.815 
Kansas,  5,115    (1901),  identical. 


36  Sarbach  v.  Xewell,  35  Kan.  180, 
10  Pac.  529. 

37  Snyder,    6,150;    Wilson,    4,816; 
Kansas,  4,732    (1889). 


§§  1227, 1228        merwine's  trial  op  title  to  land,  892 

Sec.  1227.  The  doctrine  of  lis  pendens  as  applied  to  parti- 
tion suits. 
The  doctrine  of  lis  pendens  applies  to  partition  suits  as  well 
as  other  actions,  but  a  purchaser  pendente  lite  is  only  affected 
to  the  extent  of  the  decree  and  subsequent  proceedings 
therein,  and  where  the  suit,  instead  of  terminating  in  a  judi- 
cial sale,  provides  for  one  of  the  parties  acquiring  the  title 
by  sheriff's  deed,  at  its  appraised  value,  a  mortgagee  may 
assert  his  mortgage  lien  acquired  while  the  action  is  pend- 
ing.^* 

Sec.  1228.     Form  for  petition  by  gnardian  for  partition. 

District  Court  of County,  State  of  Oklahoma. 

,  as  Guardian  of , 

an  Infant,  Plaintiff, 

vs.  No. . 

, , and ,  Defendants. 

PETITION. 

Plaintiff  says  that  on  the day  of ,  19—,  she  was 

duly  appointed  guardian  of  the  person  and  estate  of ,  an 

infant,  by  the  probate  court  of  County,  Oklahoma,  and 

thereupon  duly  qualified  and  entered  upon  the  discharge  of  the 
duties  of  her  office,  and  that  this  action  is  brought  by  her  as  such 
guardian. 

Plaintiff  says  that  her  said  ward  is  a  grandchild  of  , 

late  of County,  Oklahoma,  deceased,  who  died  intestate 

on  the  day  of ,  19 — ;  that  the  last  will  and  testa- 
ment of  said ,  deceased,  was  duly  proved  in  the  probate 

court  of  said County,  where  the  said  decedent  was  domi- 
ciled at  the  time  of  his  death,  and  was  duly  admitted  to  probate 

and  record  on  the day  of ,  19 — .    A  copy  of  said 

will  is  hereto  attached,  marked  Exhibit  "A"  and  made  a  part 
of  this  petition ;  that  said  decedent,  by  the  terms  of  his  last  will 

ssTidball    v.    Schmeltz,    77    Kan.    440,  94  Pac.  794. 


393  REAL   ACTIONS.— STATUTORY.  §  1228 

and  testament,  devised  all  of  his  property,  both  real  and  per- 
sonal, to  ]iis  wife,  ,  for  and  during  her  natural  life,  with 

remainder   after  her  death   to   be   divided   equally   among  his 

children,   the   defendants   herein,   and  his   grandchild,   , 

daughter  of  his  deceased  son, ,  being  plaintiff's  said  ward 

herein,  the  said  being  one  and  the  same  person  named 

and  designated  by  said  ,  deceased,  in  his  last  will  and 

testament,  as  " ,  my  grandchild  and  daughter  of  my  de- 
ceased son, 


The  said was  duly  appointed  and  qualified  as  executrix 

of  the  last  will  and  testament  of  said  ,  deceased,  on  the 

day  of ,  19—,  and  continued  to  act  as  such  execu- 
trix until  the  day  of  ,  19-,  at  which  time  she 

died  testate,  leaving  plaintiff's  said  ward  and  the  defendants 
herein  named  as  her  next  of  kin  and  the  only  heirs  at  law. 

The  last  will  and  testament  of  said ,  deceased,  was  duly 

proved  in  the  probate  court  of County,  Oklahoma,  where 

the  said  decedent  was  domiciled  at  the  time  of  her  death,  and 

was  duly  admitted  to  probate  and  record  on  the  day  of 

,  19—,  being  recorded  in  Vol. ,  page ,  of  the 

will  records  of  said  County.     Said  decedent  made  no 

disposition  of  any  real  estate  in  her  last  will  and  testament. 

The  defendant,  ,  was  duly  appointed  and  qualified  in 

the   probate   court   of  County,   on   the   day  of 

,  19—,  as  administrator  with  the  will  annexed  of  said 

's  estate,  and  is  now  acting  as  such. 

All  of  the  debts  and  claims  against  the  estate  of  said 

and have  been  fully  paid. 

The  said  died  seized  in  fee  of  the  first  and  second 

parcels,  and  that  he  and  the  said ,  each,  respectively,  died 

seized  in  fee  of  the  undivided  half  of  the  third  parcel  of  the  real 
estate  hereinafter  described. 

Plaintiff's    said    ward,    ,    and    the    defendants    herein 

named,  are  all  the  heirs  at  law  r.vA  the  devisees  of  the  said 
,  deceased,  and  as  such  devisees  and  heirs  at  law,  respec- 
tively, they  are  seized  of  the  estate  in  fee  as  tenants  in  common 
of  the  following  described  real  estate,  of  which  said and 


§  1229  merwine's  trial  op  title  to  Ij.vnd.  894 

died  seized,  as  above  stated,  and  all  of  which  is  situate 


in  the  city  of  ,  county  of  ,  in  tlie  State  of  Okla- 
homa, and  described  as  follows,  to-wit :  (Here  insert  description 
of  real  estate.) 

The  said   and  the   said   defendants,  ,   , 

and  ,  are  entitled  each  to  an  undivided  part  of 


said  real  estate. 

Wherefore,  plaintiff,  as  guardian  as  aforesaid,  prays  that  her 
said  ward's  interest  in  said  premises  may  be  set  off  to  her  in 
severalty;  that  partition  may  be  made  of  all  real  estate  among 
the  several  parties  in  the  proportion  above  stated,  and  if  that 
cannot  be  done  without  manifest  injury,  that  such  proceedings 
be  had  as  are  authorized  by  law,  and  for  all  other  necessary  and 

proper  relief.  — ■ 

Attorneys  for  Plaintiff. 

Petition  should  be  verified.    See  Sec.  , 

Sec.  1229.     Form  for  petition  for  equitable  partition  where 
advancements  have  been  made. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

,  and  The Company,  Defendants. 


PETITION. 

1.     First  Cause  op  Action. — On  the  day  of  , 

19 — , ,  late  of County,  Oklahoma,  hereinafter  des- 
ignated  decedent,    died   intestate.      Plaintiff    and   said   , 

and ,  are  his  children  and  only  heirs  at  law,  and 


the  defendant, ,  is  decedent's  duly  appointed,  qualified 

and  acting  administrator. 

Said  decedent  died  seized  in  fee  simple  of  the  following  lands 
and  tenements  situated  in  said  county,  and  described  as  follows, 
to-wit:  (Here  give  description  of  same.) 

Decedent  left  personalty  to  the  amount  of  about  $ .   His 

debts  amounted  to  the  sum  of  $ . 


g95  REAL   ACTIONS. — STATUTORY.  §  1229 

Decedent,  in  his  lifetime,  advanced  to  his  son, ,  toward 

and  as  a  part  of  his  distributive  share  of  decedent's  estate,  the 
following  real  estate  in  the  county  aforesaid,  and  described  as 
follows:  (Give  description  here),  and  the  deed  of  conveyance 
^Q  said  ,  specified  said  real  estate  to  be  of  the  value  of 


In  like  manner  decedent,  in  his  lifetime,  advanced  to  the  said 
-,  as  his  part  of  his  distributive  share  of  decedent 's  estate, 


the  following  described  real   estate,   to-wit :    (Give   description 

here),  and  the  deed  of  conveyance  to  the  said ,  specified 

said  real  estate  to  be  of  the  value  of  $ . 

In  like  manner  decedent,  in  his  lifetime,  advanced  to  the  said 

^  as  his  part  of  his  distributive  share  of  decedent's  estate, 

the  sum  of  $ in  money,  and  the  said received  said 

money  as  and  for  such  advancement. 

2.    Second  Cause  of  Action. — Ever  since  decedent's  death  the 

defendants,  and  and  ,  have  been  in  the 

use  and  enjoyment,  and  have  received  all  the  rents,  issues  and 
profits  of  the  real  estate  first  herein  described.  The  fair  annual 
rental  of  said  real  estate  first  herein  described  is  of  the  value 

of  $ . 

Wherefore,  plaintiff  prays  judgment  against  said  defendants, 
. and ,  for  the  value  of  said  rents  from  the 


day  of ,  19—,  at  the  rate  of  $ per  annum; 

that  said  real  estate  so  advanced  to  said  defendants  and  the  per- 
sonalty so  advanced  to  defendant,  ,  and  the  fund  now  in 

the  hands  of  said  defendant,  administrator,  be  brought  into 
hotchpotch  so  that  a  just  and  equal  division  in  partition  may  be 
made  of  the  real  estate  first  herein  described,  among  the  plain- 
tiffs, the  said  , and ;  that  from  said  lands 

the  value  of  $ there  be  deducted  from  the  one-fourth  part 

of  said 's  share  of  the  said ;  that  the  said 

be  charged  with   the  sum  of  $ against  his  distributive 

share  of  the  personalty  of  decedent,  and  if  his  share  be  more 
than  his  distributive  portion  thereof,  the  residue  be  deducted 

from  his  said  part  of  said  land  to  be  partitioned;  that 

the  court  cause   to  be  partitioned  the  real  estate  first  herein 


§  1230              merwine's  trial  of  title  to  land.                  896 
described  to  plaintiff  and  to  and  among  the  said ,  


and ,  in  view  of  said  advancements  and  in  accordance 

with  their  respective  rights,  regard  being  had  thereto,  and  if 
partition  cannot  be  made,  that  said  real  estate  may  be  sold,  and 
that  plaintiff  may  have  such  other  and  further  relief  as  equity 
and  the  nature  of  the  case  may  require. 


Attorneys  for  Plaintiff. 
The  petition  should  be  verified. 


Sec.  1230.    Form  for  petition  where  an  account  for  rents  and 
profits  is  asked. 

District  Court  of County,  State  op  Oklahoma. 

,  Plaintiff, 

vs.  No.  . 

,  Defendant. 

PETITION    FOR    PARTITION. 


Your  petitioner, ,  of County,  State  of  Oklahoma, 

alleges  that  he,  together  with  the  said  ,  who  resides  in 

County,  Oklahoma,  is  seized  of  an  estate  as  tenants  in 

common,  in  the  following  described  real  estate,  situate  in  the 

county  of  ,   State  of  Oklahoma,   and  in  the  of 

• ,  and  bounded  and  described  as  follows,   to-wit:    (Here 

insert  description  of  premises.) 

Plaintiff  further  alleges  that  he  and  the  defendant  hold  the 
premises  in  the  following  proportions,  to-wit:  Said  plaintiff  is 
the  owner  in  fee  simple  of  the  undivided thereof. 

Plaintiff  further  says  that,  since  he  and  the  defendant  have 
owTied  the   said   premises   above   described  in   common,   to-wit, 

since  the day  of ,  19 — ,  the  defendant, ,  has 

received  all  the  rents  and  profits  arising  therefrom ;  that  plain- 
tiff has  paid  all  the  taxes,  insurance,  repairs  and  improvements 
on  said  premises,  and  has  paid  certain  incumbrances,  the  exact 
amount  of  which  plaintiff  is  unable  to  state,  and  plaintiff  cannot 


897  REAL   ACTIONS. STATUTORY.  §  1231 

state  the  exact  amount  of  the  rents  and  profits  so  received  by 

the  said . 

Plaintiff  is  desirous  of  holding  his  interest  in  said  premises  in 
severalty,  and  therefore  prays  that  his  interest  may  be  set  off 
to  him,  and  if  the  same  cannot  be  done  without  manifest  injury, 
then  that  the  premises  be  sold,  or  other  order  taken  pursuant  to 
the  statute  in  such  case  made  and  provided,  and  that  an  account- 
ing be  made  of  the  rents  and  profits  of  said  premises,  the  taxes, 
insurance,  repairs  and  improvements  and  incumbrances  paid  by 
plaintiff'  up  to  the  date  when  the  partition  shall  be  made;  that 
the  same  may  be  declared  to  be  a  lien  on  the  premises  in  favor 
of  the  plaintiff,  and  for  further  and  proper  relief. 


Attorney  for  Plaintiff. 
The  petition  should  be  verified. 


Sec.  1231.  The  proceedings  by  which  real  estate  is  parti- 
tioned by  the  court — The  ordinary  form  for 
partition. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. 

,  Unmarried, and , 


His   Wife,   and  ,    His 

AVife,    ,    ,    and 

,  Defendants. 

PETITION. 

Comes  now  the  plaintiff,  and,  for  his  cause  of  action  herein, 
alleges  and  states : 

1.  That  he  has  a  legal  right  to,  and  is  seized  of  an  estate  in 
fee  simple  in  the  undivided interest  in  and  to  the  follow- 
ing described  real  estate  situate  in County,  and  State  of 

Oklahoma,  to-wnt:  (Here  describe  real  estate.) 

2.  That  said  defendants,  ,  and  ,  each 

have  a  legal  right  to,  and  are  seized  in  fee  simple,  of  the  undi- 


§1231  merwine's  trial  of  title  to  land.  898 

yided  interest  each  in  and  to  the  aforesaid  real  estate. 

The  said is  the  wife  of  said ,  and  the  said 

is  the  wdfe  of .    The  said  defendants,  and , 

each  claim  some  mort2:age  lien  or  interest  in  and  to  the  real 

estate  aforesaid.    The  defendants, and ,  each  claim 

some  interest  in  and  to  said  real  estate,  the  nature  of  which 
plaintiff  is  not  advised. 

Plaintiff   prays    that    the   said   ,   ,    and 

,  be  required  by  this  court  to  come  into  this  action,  and, 

by  appropriate  pleadings  herein  set  up  their  respective  inter- 
ests in  and  to  said  real  estate,  if  any  they  have,  or  be  forever 
barred  from  asserting  the  same  in  any  court;  that  his  interest 
may  be  set  off  to  him,  in  severalty,  and  if  the  same  cannot  be 
done  without  manifest  injury  to  said  real  estate,  then  that  said 
real  estate  be  sold  or  other  order  taken  pursuant  to  the  statutes 
in  such  cases  made  and  provided,  and  that  plaintiff  have  such 
other  and  further  relief  as  the  case  may  require. 


Attorneys  for  Plaintiff. 

State  of  Oklahoma, County,  ss. : 

,  being  first  duly  sworn,  says  that  plaintiff  is  a  non- 
resident of  the  State  of  Oklahoma ;  that  he  is  attorney  for  plain- 
tiff, and  that  the  facts  stated  and  the  allegations  contained  in 
the  foregoing  petition  are  true  as  he  verily  believes.* 


Sworn  to  before  me  and  subscribed  in  my  presence  on  this 
day  of ,  19 — . 


[Seal.]  Clerk  of  the  District  Court. 

■  The    praecipe   for   summons  and  the    summons    are    the    same    as    in 
other  notions. 


899  REAL   ACTIONS. — STATUTORY.  §§1232,1233 

£ec.   1232.     Form  for  answer  of  defendant  disclaiming  any 
interest  in  the  real  estate. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No. 

,  Unmarried, and , 


His   Wife,   and  ,    His 

Wife,    ,    ,    and 

,  Defendants. 

ANSWER    DISCLAIMING    INTEREST. 

Comes  now  ,  one  of  the  defendants  above  named,  by 

,  his  attorney,  and,  for  his  answer  to  the  petition  filed 


herein,  states  that  he  disclaims  any  right,  title  or  interest  or 
claim  in  and  to  the  premises  mentioned  and  set  forth  in  plain- 
tiff's petition.  — , 

By , 


His  Attorney. 


Sec.  1233.     Form  for  answer  in  partition. 


District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No. 

,  Unmarried, and 


His   Wife,  and  ,    His 

Wife,    ,    ,    and 

,  Defendants. 

ANSWER   OF   DEFENDANTS. 
Now  comes  and   ,   defendants   herein, 


being  one  and  the  same  person  made  defendant  in  the  name  of 

,  and,  in  answer  to  plaintiff's  petition,  these  defendants 

admit  that is  the  absolute  owner  of  an  undivided 


§  1234  MER wine's  trial  of  title  to  land.  900 

interest  in  and  to  the  real  estate  described  in  said  petition ;  that 

and are  husband  and  wife.     As  to  other  matters 

alleged  in  said  petition  these  defendants  are  not  advised,  but 
pray   proper   proof    thereof,   excepting    these   defendants   deny 

that and have  any  interest  whatever  in  said  real 

estate  or  any  part  thereof;  that  their  alleged  claims  have  here- 
tofore been  adjudged  void  and  removed  as  clouds  from  the  title 
against  said  realty. 


Attorneys  for and 


Sec.  1234.     Form  for  decree  for  partition. 

District  Court  of County,  State  of  Oklahoma. 


-,  Plaintiff, 


vs. 


No. 


-,  Unmarried, and 


His   Wife,  and  ,   His 

Wife,    ,    ,    and 

,  Defendants. 

DECREE    FOR    PARTITION. 

This  cause  having  been  regularly  placed  on  the  trial  docket  of 
this  term  of  court  and  set  for  hearing  on  this  day,  and  now 

coming  on  to  be  beard  upon  the  petition  of  plaintiff,  , 

and  the  answer  thereto  of  the  defendants,  and  , 

the  answer  of ,  disclaiming  any  interest  in  said  real  estate, 

and  the  evidence,  and  the  argument  of  counsel,  and  the  court, 
upon  due  consideration,  finds  that  each  and  every  of  the  re- 
maining defendants  are  in  default  for  answer  and  demurrer  to 
the  petition,  and  were  called  three  times  in  open  court,  and 
came  not,  and  their  having  confessed  the  allegations  in  the 
petition  to  be  true,  the  court  finds  that  the  plaintiff  has  a  legal 
right  to  and  is  seized  of  an  estate  in  fee  simple  in  the  undivided 
interest  in  and  to  the  folloAnng  described  real   estate, 


to-wit:   (Here  describe  it.)     And  that  said  defendants, , 

and ,  each  have  a  legal  right  to  and  are  seized  in 


901  REAL  ACTIONS. — STATUTORY.  §  1235 

fee  simple  of  the  undivided interest  in  and  to  said  real 

estate. 

It  is  Therefore  ordered,  adjudged  and  decreed  that  partition 
be  made  of  said  real  estate  among  said  parties  in  the  proportion 

and  as  found  herein,  and  that , and ,  three 

judicious  and  disinterested  householders  of  this  county,  and  not 
of  kin  to  any  of  the  parties  interested  thereto,  are  hereby  ap- 
pointed commissioners  to  make  said  partition. 

It  is  further  ordered  that  a  writ  of  partition  issue  to  the 

sheriff  of County,  Oklahoma,  commanding  him  that  by 

the  oaths  of  the  commissioners  above  named,  he  caused  to  be  set 
off  and  divided  to  each  of  the  above  named  parties,  tenants  in 
common,  the  parts  and  portions  of  said  real  estate,  to  which 
they  are  hereinabove  severally  found  entitled,  to-wit : 

To ,  the part  thereof. 

To ,  the part  thereof. 

To ,  the part  thereof. 

And  that  if,  in  the  opinion  of  sard  commissioners,  said  real 
estate  cannot  be  divided  by  metes  and  bounds  without  injury  to 
the  value  thereof,  then  that  they  appraise  said  real  estate,  and 
that  said  sheriff  make  due  return  of  his  proceedings  under  said 

vrrit , 

Judge  of  the  District  Court. 

Sec.  1235.    The  writ  of  partition  directed  to  the  sheriff  by 
the  clerk. 
District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No. . 

,  Unmarried, and , 

His   Wife,   and  ,    His 

Wife,    ,    ,    and 

,  Defendants. 

State  of  Oklahoma, County,  ss. : 

To  the  Sheriff  of  said  County,  Greeting: 

We  command  you  that  without  delay,  by  the  oaths  of , 

and ,  you  cause  partition  to  be  made  of  the  follow- 


§  1236  MER wine's  trial  of  title  to  land.  902 

ing  described  real  estate,  situate  in  County,  State   of 

Oklahoma,  to-wit:  (Here  describe  it),  among  the  following  per- 
sons in  the  following  proportions,  to-wit : 

To  ,  the  part  thereof; 

To  ,  the  part  thereof;  and 

To  ,  the  part  thereof. 

If,  however,  it  is  the  opinion  of  said  commissioners  that  said 
real  estate  cannot  be  divided  by  metes  and  bounds  without 
manifest  injury  to  the  value  thereof,  you  will  then  cause  said 
commissioners  to  make  an  appraisement  thereof. 

This  writ  issues  in  pursuance  of  an  order  lately  made  in  the 

district  court  of County,  Oklahoma,  in  a  certain  action 

for  partition,  wherein  the  said was  plaintiff,  and 

and  others  were  defendants,  and  numbered  on  the  docket  of  said 
court  . 

Of  your  proceedings  in  the  premises  you  shall  distinctly 
certify  under  your  hand  to  o  ursaid  court  forthwith. 

"Witness  my  hand  and  seal  of  said  court  at  the  courthouse  in 

,  County,  Oklahoma,  this  day  of  , 

19—.  . 


[Seal.]  Clerk. 


Sec.  1236.     The  oath  of  the  commissioners. 


District  Court  op County,  State  of  Oklahoma. 

,  Plaintiff, 


vs.  No. 

,  Unmarried, and 


His   Wife,   and   ,    His 

Wife,    ,    ,    and 

,  Defendants. 

We,  , and  ,  the  undersigned  commission- 
ers in  the  above  entitled  cause,  appointed  to  appraise  or  parti- 
tion lands  in  said  cause,  do  solemnly  swear  that  we  will  per- 


903  REAL   ACTIONS. — STATUTORY.  §  1237 

form  our  duties  as  commissioners  in  the  above  action  faithfully, 
impartially  and  to  the  best  of  our  ability. 


Sworn  to  before  me  and  subscribed  in  my  presence  tnis 
day  of ,  19 — .  _ 


[Seal.]  Notary  Public. 

My  commission  expires . 

Sec.  1237.     The  commissioners'  report  of  their  proceedings. 

District  Court  of County,  State  of  Oklahoma. 

,  PUmitiff, 


vs.  No. 
,  Unmarried, and 


His   Wife,   and  ,    His 

Wife,    ,    ,    and 

,  Defendants. 

According  to  the  command  of  the  writ  of  partition  in  this  case 
issued,  and  on  call  of  the  sheriff  of  said  county,  we,  the  under- 
signed commissioners  in  partition  in  said  cause,  after  being  first 
duly  sworn,  and  after  actual  view  of  the  premises,  do  make  par- 
tition thereof  as  follows,  to-wit: 

To  the  said  ,  the  following  portion:  (Here  specifically 

describe  it.) 

To  the  said ,  the  following  portion  thereof:  (Here  spe- 
cifically describe  it.) 

To  the  said ,  the  following  portion  thereof:  (Here  spe- 
cifically describe  it.) 

Given  under  our  hands  this day  of ,  19 — . 


Cotnmissioners . 


§§  1238, 1239      merwine's  trial  of  title  to  land.  904 

Sec.  1238.     The  sheriff's  return  of  his  proceedings. 

As  commanded  by   the   foregoing   writ  of  partition,   I  have 

executed  the  same  by  the  oaths  of ,  and  , 

causing  said  partition  to  be  made  of  the  real  estate  in  this  writ 
described,  all  of  which  will  appear  by  the  report  of  the  commis- 
sioners returned  herewith. 

Given  under  my  hand  this day  of ,  19 — . 


Sheriff  of County,  Oklahoma. 


Sec.  1239.     Confirmation  of  commissioners'  report. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No.  

,  Unmarried, and , 


His   Wife,  and  ,   His 

Wife,    ,    ,    and 

,  Defendants. 

This  cause  coming  on  this  day  to  be  heard  upon  the  return  of 
the  sheriff  and  the  report  of  the  commissioners  heretofore  ap- 
pointed herein,  and  upon  application  to  confirm  the  same,  and 
it  appearing  from  the  evidence  adduced  and  the  argument  of 
counsel,  that  said  return  and  said  report  are  regular  and  in  due 
form  of  law,  and  that  the  same  should  be  approved  and  con- 
firmed. 

It  is  Therefore  ordered,  adjudged  and  decreed  that  said 
return  and  said  report  be,  and  the  same  are  hereby  approved 
and  confirmed ;  and 

It  is  further  ordered  that  the  sheriff  execute  and  deliver  to 
each  of  the  parties  herein  the  shares  allotted  to  each  in  said 
report. 

And  the  court  coming  now  to  fix  and  apportion  the  attorney's 
fee  herein  and  the  costs,  it  is  ordered  that  the  attorney  for 


905  REAL   ACTIONS. — STATUTORY.  §  1240 

plaintiff,  ,  be  paid  $ for  his  services  herein,  and 

that  the  same,  together  with  the  costs  herein,  taxed  at  $ , 

be  paid  by  each  of  the  parties  hereto  in portions,  and  for 

the  payment  of  said  fee,  and  said  costs,  let  an  execution  issue. 


Judge  of  the  District  Court. 
Sec.  1240.    The  sheriff's  deed. 

THE    SHERIFF'S    DEED. 

"Whereas,  on  the day  of ,  19 — , ,  as  plain- 
tiff, filed  his  certain  petition  and  then  and  there  commenced  an 

action  in  the  district  court  of County,  Oklahoma,  against 

and  others,  and  numbered  on  the  docket  of  said  court, 

■ — ,  demanding  partition  of  certain  real  estate;  and. 

Whereas,  such  proceedings  were  had  tliat  commissioners  in 
partition  were  duly  appointed  by  said  court  in  said  cause,  who, 
after  being  duly  sworn  according  to  law,  and  upon  actual  view, 

made  partition  thereof,  and  assigned  and  set  off  to  the 

real  estate  hereinafter  described;  and, 

Whereas,  the  said  commissioners  made  their  return  of  said 
partition  to  the  court  for  confirmation,  and  upon  due  considera- 
tion whereof,  the  court  approved  and  confirmed  the  same  and 
ordered  the  sheriff  of  said  County  to  execute  and  de- 
liver a  deed  to  the  parties  to  whom  said  lands  had  been  assigned. 

Now,  Therefore,  I,  ,  sheriff  of  said  County, 

Oklahoma,  in  consideration  of  the  premises,  and  by  virtue  of  the 
powers  in  me  vested  by  law,  do,  by  these  presents,  grant,  bargain, 

sell  and  convey  unto the  following  described  real  estate, 

to-wit :  (Here  describe  it.) 

To  Have  and  to  Hold  the  same  unto  ,  his  heirs  and 

assigns,  as  fully  and  completely  as  I,  the  said  ,  sheriff 

of  said  county  and  State,  by  virtue  of  said  order  of  said  court 
and  of  the  statute  made  and  provided  for  such  cases,  might  or 
should  convey  the  same. 


§  1241  MER wine's  trial  of  title  to  land.  906 

In   Witness  Whereof,   I  have  hereunto   set   my   hand  this 
day  of ,  19—. 


Sheriff  of  said  County  and  State. 


State  of  Oklahoma, County,  ss. ; 

Before  me,  a  in  and  for  said  county  and  State,  per- 
sonally appeared ,  sheriff  of  said  county  and  State,  to  me 

kno\\Ta  to  be  the  identical  person  who  executed  the  within  and 
foregoing  instrument,  and  acknowledged  to  me  that  he  executed 
the  same  as  his  free  and  voluntary  act  and  deed  as  such  sheriff 
for  the  uses  and  purposes  herein  set   forth. 

In  Witness  Whereof,  I  have  hereunto  affixed  my  hand  and 
seal  on  this day  of ,  19 — . 


[Seal.]  Notary  Public. 

*My  commission  expires  , 


Sec.  1241.     Commissioners'  report  when  the  property  cannot 
be  divided  and  must  be  sold. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 


vs. 


No. 


,  Unmarried, and , 

His   Wife,   and  ,    His 

Wife,    ,    ,    and 

,  Defendants. 

According  to  the  command  of  the  writ  of  partition  in  this  case 
issued,  and  call  of  the  sheriff  of  said  county,  we,  the  undersigned 
commissioners  in  partition,  after  being  first  duly  sworn,   and 

•  In  case  the  lands  cannot  be  to  take  it  at  the  appraisement,  the 
divided  without  manifest  injury  proceedings  by  the  commissioners 
thereto,  or  one  of  the  parties  elect       assume  the  following  form. 


907  REAL   ACTIONS. — STATUTORY.  §§1242,1243 

after  actually  viewing  the  premises,  are  of  the  opinion  that  said 
real  estate  cannot  be  divided  Avithout  manifest  injury,  and  we  do 

estimate  the  value  of  the  same  at  $ . 

Given  under  our  hands  this day  of ,  19 — . 


Commissioners. 


Sec.  1242.    Sheriff's  return. 

As  commanded  by  the  writ  of  partition  above  directed  to  me, 

I  have  executed  the  same  by  the  oaths  of  ,  and 

,  and  the  said  commissioners  being  of  the  opinion  that  the 

said  real  estate  cannot  be  divided  without  manifest  injury,  I 
have  caused  the  same  to  be  appraised,  all  of  which  will  appear 
by  the  report  of  the  commissioners  returned  herewith. 

Given  under  my  hand  this day  of ,  19 — . 


Sheriff. 

Sec.  1243.    Election  by  one  of  the  parties  to  take  real  estate 
at  the  appraisement. 

District  Court  of County,  State  of  Oklahoma. 


,  Plaintiff, 

vs. 

-,  Unmarried,  and 


No. 


His  Wife,  and  ,   His 

Wife,    ,    ,    and 

,  Defendants. 

Comes  now  ,  one  of  the  parties  to  this  action,  and  a 

tenant  in  common  to  the  real  estate  sought  to  be  partitioned 
herein,  and  elects  to  take  the  same  at  the  appraisement  thereof, 
and  he  asks  the  court  to  award  such  real  estate  to  him. 


§  1244  MER wine's  trial  op  title  to  land.  908 

Sec.   1244.     Entry  confirming   sale,    order   of   deed  and   dis- 
tribution of  funds. 

District  Court  of County,  State  op  Oklahoma. 

,  Plaint ijf, 

vs.  No.  . 

,  Unmarried,  and , 


His   Wife,   and   ,   His 

Wife,    ,    ,    and 

,  Defendants. 

This  cause  coming  on  this  day  to  be  heard  upon  the  return  of 
the  sheriff  and  the  report  of  the  commissioners  heretofore  ap- 
pointed herein,  and  on  motion  to  confirm  the  same,  and  it 
appearing  from  said  report  that  said  real  estate  could  not  be 
divided  by  metes  and  bounds  without  injury  to  the  value  thereof, 
and  that  said  commissioners  have  made  and  returned  their  ap- 
praisement of  said  real  estate  at  $ ,  and  the  court  being 

fully  advised  in  the  premises,  finds  said  return,  appraisement 
and  the  proceedings  under  said  writ  of  partition  to  be  in  all 
respects  correct  and  in  conformity  to  law,  and  the  former  orders 
of  this  court,  and  does  therefore  approve  and  confirm  the  same. 

And  it  appearing  to  the  court  that  said is  one  of  the 

tenants  in  common  of,  and  interested  in,  said  real  estate,  and 
has  elected  to  take  the  same,  the  court,  on  good  cause  showTi, 
directs  and  requires  said  sum  to  be  paid  in  cash,  and  that  upon 

said  paying  the  same  into  court,  the  said  premises  and 

estate  be,  and  hereby  are,  adjudged  to  him,  the  said ,  and 

said  sheriff  is  ordered  thereupon  to  make  and  to  execute  a  deed 
in  fee  simple  therefor. 

And  the  court,  coming  now  to  distribute  the  proceeds  of  said 

sale,  amounting  to  the  sum  of  $ ,  it  is  ordered  that  out  of 

said  sum  the  sheriff  pay : 

1.  To  the  clerk  the  costs  of  this  action,  including  attorney 
fee,  to ,  in  the  sum  of  $ ,  in  all  the  sum  of  $ . 


909  REAL   ACTIONS. — STATUTORY.  §  1245 

2.  To ,  the  sum  of  $ ,  his  distributive  share. 

3.  To ,  the  sum  of  $ ,  his  distributive  share. 

4.  To ,  the  sum  of  $ ,  his  distributive  share.* 


Sec.    1245.    Entry   confirming   report   of   appraisement   and 
ordering  sale  of  real  estate. 

District  Court  of County,  State  of  Oklahoma. 

■ ,  Plaintiff, 

No. . 


vs. 
,  Unmarried, and , 

His   Wife,   and   ,   His 

Wife,    ,    ,    and 

,  Defendants. 

This  cause  coming  on  this  day  to  be  heard  upon  the  return  of 
the  sheriff  and  the  report  of  the  commissioners  heretofore  ap- 
pointed herein,  and  on  application  to  confirm  the  same,  and  it 
appearing  from  said  report  that  said  real  estate  could  not  be 
divided  by  metes  and  bounds  without  injury  to  the  value  thereof, 
and  that  said  commissioners  have  made  and  returned  their  ap- 
praisement of  said  real  estate  at  $ ,  and  the  court,  being 

fully  advised  in  the  premises,  finds  said  return,  appraisement 
and  the  proceedings  under  said  writ  of  partition  to  be  in  aV 
respects  correct  and  in  conformity  to  law  and  former  orders  of 
this  court,  and  does,  therefore,  approve  and  confirm  the  same. 

And  it  further  appearing  to  the  court  that and , 

tenants  in  common  in  and  to  said  real  estate  and  parties  to  this 
action,  have  by  motion  in  writing  herein,  elected  to  take  said 
real  estate  at  the  appraised  value  thereof,  thus  requiring  a  sale 
of  said  real  estate,  it  is  therefore  ordered,  adjudged  and  decreed 

*The  deed  can  be  made  up  from  elects    to    take    it,    the    proceedings 

the  forms  at  Section  .     Where  after     the     appraisement     and     the 

two  of  the  parties  elect  to  take  at  sheriff's  return  assume  the  following 

the    appraisement,    or    where    none  form. 


§  1246  MER wine's  trial  of  title  to  land.  910 

that  said  sheriff  of  County,  Oklahoma,  proceed  at  once 

to  advertise  and  sell  said  real  estate  as  in  sales  of  real  estate 
on  execution,  at  not  less  than  two-tliirds  of  the  appraised  value 
thereof,  and  that  he  make  due  return  of  his  proceedings  here- 
under to  this  court  for  confirmation  and  further  order. 


Judge  of  the  District  Court. 


Sec.  1246.     The  order  of  sale  from  the  clerk  to  the  sheriff. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 

vs.  No.  . 

,  Unmarried,  and , 


His   Wife,  and   ,   His 

Wife,    ,    ,    and 

,  Defendants. 

To  the  Sheriff  of  said  County,  Greeting: 

In  pursuance  of  an  order  of  our  district  court  within  and  for 

the  county  of  ,  State  of  Oklahoma,  at  the  ,  19 — 

Term,  in  a  certain  petition  for  partition  now  pending  in  said 

court,  wherein  is  plaintiff,  and  and  others  are 

defendants,  we  command  you  that,  without  delay,  you  proceed 
to  sell  at  public  auction,  the  lands  and  tenements  in  said  petition 

described,  to-wit:   (Here  describe  same),  appraised  at  $ , 

and  that  your  proceedings  in  the  premises  you  make  known  to 
our  said  district  court  at  its  next  term,  and  have  you  then  and 
there  this  writ. 

Witness  my  hand  and  the  seal  of  said  court  at  this 

day  of ,  19. 


Clerk. 


911  REAL   ACTIONS. — STxVTUTORY.  §§1247,1248 

Sec.  1247.    Legal  notice  of  sale. 

District  Court  of County,  State  of  Oklahoma. 

,  Plaintiff, 

^'s-  No.  . 

,  Unmarried, and , 


His   Wife,   and   ,   His 

Wife,    ,    ,    and 

,  Defendants. 

In  pursuance  of  an  order  of  sale  in  partition  from  said  court 
to  me  directed,  I  will  offer  for  sale,  at  public  auction,  at  the  door 

of  the  courthouse  in  ,  Oklahoma,  on  the  day  of 

,  19 — ,  at  o'clock,  —  m.,  the  following  described 

real  estate:  (Plere  describe  it),  appraised  at  $ . 

Terms  of  sale,  cash. 


Sheriff  of County,  Oklahoma. 

Sec.  1248.     Proof  of  publication. 

State  of  Oklahoma, County,  ss. : 

,  of  lawful  age,  being  first  duly  sworn,  says  that  he  is 

the  of  the  ,  a  weekly  newspaper,  published  and 

printed  in  the  city  of ,  in County,  Oklahoma,  and 

of  general  circulation  in  said  county  and  State ;  that  said 

has  been  published  for  more  than  fifty-two  consecutive  weeks 
prior  to  the  dates  on  which  the  notice  herein  referred  to  was 
published,  and  the  notice,  of  which  a  true  copy  is  hereto  at- 
tached, was  published  in  the  regular  and  entire  edition  of  said 

,   and  not  a  supplement  thereof,   for  weeks,   the 

first  publication  being  on  the  day  of  ,  19 — ,  and 

the  last  of  said  publications  being  on  the day  of , 

19—.  

Subscribed  and  sworn  to  before  me  this day  of , 

19—.  1 


[Seal.]  Notary  Public. 

My  commission  expires  . 


§§  1249, 1250      merwine's  trial  of  title  to  land.  912 

Sec.  1249.     Sheriff's  return. 

As  commanded  by  this  writ,  I   have  caused  the  lands  and 

tenements  herein  described  to  be  duly  advertised   for  

weeks  next  preceding  the  day  of  sale  in  ,  a  newspaper, 

printed    and    published   and   of   general   circulation   in   

County,    Oklahoma,    on    the   day   of   ,    19 — ,    at 

o'clock,  —  m.,  on  said  day,  at  the  courthouse  in  said 

county,  I  offered  for  sale  at  public  auction  the  lands  and  tene- 
ments described  in  this  writ.    And  thereupon,  at  said  sale. 


bid  therefor  the  sum  of  $ ,  and  said  sum  being  more  than 

two-thirds  of  the  appraised  value  thereof,  and  being  the  highest 

and  best  bidder,  he,  the  said ,  was  declared  the  purchaser 

thereof.  , 

Sheriff  of County,  Oklahoma. 


Sec.  1250.     Confirmation  of  sale,  order  for  distribution  and 
deed. 

District  Court  of County,  State  op  Oklahoma. 

,  Plaintiff, 

No. . 


vs 


,  Unmarried, and , 

His   Wife,  and  ,   His 

Wife,    ,    ,    and 

,  Defendants. 

This  cause  coming  on  to  be  heard  on  the  said  day  of 

,  19 — ,  comes  the  plaintiff  by  ,  his  attorneys,  and 


moves  the  court  to  confirm  the  sale  of  real  estate  made  by  the 

sheriff  of County,  State  of  Oklahoma,  on  the day 

of ,  19 — ,  under  an  order  of  sale  in  partition,  issued  out 

of  the  office  of  the  clerk  of  this  court,  said  sale  being  of  the 
following  described  real  estate,  to-wdt:  (Here  describe  it.)  And 
the  court,  having  examined  the  proceedings  of  said  sheriff, 
under  said  order  of  sale,  finds  the  same  to  have  been  performed 
in  all  respects  in  conformity  to  law  and  the  previous  orders  of 
this  court,  no  objections  having  been  made  thereto,  it  is  ordered 


913 


REAL    ACTIONS. — STATUTORY. 


§1250 


and  adjudged  by  this  court  that  said  proceedings  and  sale  be, 
and  they  are,  hereby  approved  and  confirmed. 

It  is  further  ordered  that  the  sheriff  of  said  county  make  and 
execute  a  deed  to  the  purchaser  of  said  real  estate. 

And  the  court,  coming  now  to  distribute  the  proceeds  of  said 
sale  now  in  the  hands  of  said  sheriff,  it  is  ordered  that  he  pay: 

1.     To  the  clerk  of  this  court  the  costs  of  this  action,  taxed 

at  $ ,  including  an  attorney  fee  for  ,  in  the  sum 

of  $ . 

,  the  sum  of  $ 


2.  To  

tributive  share. 

3.  To  


the  sum  of  $- 


tributive  share. 
4.     To  


the  sum  of  $- 


tributive  share.* 


the  same  being  his  dis- 
the  same  being  his  dis- 
the  same  being  his  dis- 


Judge  of  said  Court. 


The  from  at  Section 


will    indicate  the  deed. 


§1251 


MERWINE  S    TRIAL    OF    TITLE    TO   LAND. 


914 


4.    PARTITION. 


(&)    County  Court. 


SECTION 

1251.  The   partition   may  be   made, 

when — The  commissioners  in 
partition — Their  oatli  and 
duties. 

1252.  The  petition  for  partition  and 

the    notice   required. 

1253.  The    partition    when    the    real 

estate  is  in  dillerent  coun- 
ties. 

1254.  Partition   may  he  made  when 

licirs  of  devisees  may  liave 
conveyed. 

1255.  Both    partition    and    distrihu- 

tion — Metes  and  bounds. 

1256.  The   rule   when   estate   cannot 

be  divided — Owelty  in  par- 
tition— Males  preferred  to 
females — Duties  of  commis- 
sioners when  estate  cannot 
be  divided. 

1257.  The   whole    tract   may  be   as- 

signed to  whom — The  pay- 
ment  by   the   others. 

1258.  The   real   estate   to   be   sold — 

Manner  of  sale — See  laws, 
1910. 

1259.  The  notice  required — ^Commis- 

sioners may  take  evidence — 
Duties  of. 
12G0.  The  report  of  the  commis- 
sioners— Other  commission- 
ers may  be  appointed,  when 
— The  decree  to  be  recorded 
and  where. 


SECTION 

1261.  Commissioners    need    not    be 

appointed,    when. 

1262.  The  court   lias  power  to  hear 

and  determine  questions  of 
advancements. 

1263.  Form    for    petition    for    parti- 

tion,  county  court. 

1264.  Order  for  hearing  petition  for 

partition. 

1265.  Tlie  notice  for  the  hearing  of 

tiie  petition. 

1266.  P'orm   for   order   of   the   court 

appointing  commissioners  to 
];artition. 

1267.  Form    for    oath    of    the    com- 

missioners  in  partition. 

1268.  Report     of     commissioners 

awarding  partition  among 
the  heirs. 

1269.  Form      for      confirmation      of 

commissioners'   report. 

1270.  The  notice  to  be  given  by  the 

commissioners  in  partition 
of  the  time  and  place  of 
their  hearing. 

1271.  Form   for   return    of   commis- 

sioners assigning  estate  to 
one  of  the  parties. 

1272.  Form    for    report    of   commis- 

sioners when  property  is  to 
be  sold. 

1273.  Form    for    order    for    sale    in 

partition  and  a  distribution 
of  proceeds. 


Sec.  1251.  The  partition  may  be  made,  when— The  commis- 
sioners in  partition— Their  oath  and  duties. 
When  the  estate,  real  or  personal,  assigned  by  decree  of 
distribution  to  two  or  more  heirs,  devisees  or  legatees,  is  in 
common  and  undivided,  and  the  respective  shares  are  not  sep- 
arated  and   distinguished,   partition   or   distribution   may   be 


915  REAL  ACTIONS. — STATUTORY.  §  1252 

made  by  three  disinterested  persons,  to  be  appointed  com- 
missioners for  that  purpose  by  the  county  court,  or  judge, 
who  must  be  duly  sworn  to  the  faithful  discharge  of  their 
duties.  A  certified  copy  of  the  order  of  their  appointment, 
and  of  the  order  of  decree  assigning  and  distributing  the 
estate,  must  be  issued  to  them  as  their  warrant,  and  their 
oath  must  be  indorsed  thereon.  Upon  consent  of  the  parties, 
or  when  the  court  deems  it  proper  and  just,  it  is  sufficient 
to  appoint  one  commissioner  only,  who  has  the  same  authority 
and  is  governed  by  the  same  rules  as  if  three  were  appointed.^ 

Sec.  1252.     The  petition  for  partition  and.  the  notice  required. 

Such  partition  may  be  ordered  and  had  in  the  county 
court,  on  the  petition  of  any  person  interested.  But  before 
commissioners  are  appointed,  or  partition  ordered  by  the 
county  court  as  directed  in  this  chapter,  notice  thereof  must 
be  given  to  all  persons  interested  who  reside  in  this  State, 
or  their  guardians,  and  to  the  agents,  attorneys  or  guardians, 
if  any  in  this  State,  of  such  as  reside  out  of  the  State,  either 
personally  or  by  public  notice,  as  the  county  court  may 
direct.  The  petition  may  be  filed,  attorneys,  guardians  and 
agents  appointed  and  notice  given  at  any  time  before  the 
order  or  decree  of  distribution,  but  the  commissioners  must 
not  be  appointed  until  the  order  or  decree  is  made  distrib- 
uting the  estate.- 

1  Snyder,    5,418;     Wilson,    1,760;  a  Snyder,    5,419;     Wilson,    1,761; 

California,    1,075    (Kerr),   identical.  North   Dakota,   8,217    (1905),   iden- 

As   to   limited   powers   of   court   in,  tical;    South    Dakota,    314     (1904), 

see  Buckley  v.  Superior  Court,  102  identical;   California,  1,677    (Kerr), 

Cal.  6,  36  Pac.  300,  41  Am.  St.  135;  identical;       Buckley      v.      Superior 

Estate  of  Hinckley,  58  Cal.  487.   As  Court,   102   Cal.   6,  36   Pac.  360,  41 

ancillary  to  power  of  probate  court,  Am.  St.  135.     "May"  of  the  statute 

said  courts  have  power  to  partition.  means  "must."     Buckley  v.  Superior 

Kobinson  v.  Fair,   128  U.  S.  53,  32  Court,     ibid.       Administrator     may 

L.    Ed.    415;    Richardson    v.    Loup,  not  have  partition,   when.     Ryer  v. 

60  Cal.   490,   22   Pac.   227.     Cannot  Fletcher,  126  Cal.  482,  58  Pac.  908. 
partition  homestead  occvipied  by  wife 

and   children.     Trumbly  v.  Martell, 

61  Kan.  703,  60  Pac.  741. 


§§  1253-1255       merwine's  trial  op  title  to  land.  916 

Sec.  1253.     The  partition  when  the  real  estate  is  in  different 
counties. 

If  the  real  estate  is  in  different  counties,  the  county  court 
may,  if  deemed  proper,  appoint  commissioners  for  all,  or 
different  commissioners  for  each  county.  The  whole  estate, 
whether  in  one  or  more  counties,  must  be  divided  among  the 
heirs,  devisees  or  legatees,  as  if  it  were  all  in  one  county,  and 
the  commissioners  must,  unless  otherwise  directed  by  the 
county  court,  make  division  of  such  real  estate  wherever  situ- 
ated within  this  State.^ 


Sec.  1254.  Partition  may  be  made  where  heirs  or  devisees 
may  have  conveyed. 
The  partition  or  distribution  of  the  real  estate  may  be 
made,  as  provided  in  this  chapter,  altliough  some  of  the 
original  heirs,  legatees  or  devisees  may  have  conveyed  their 
shares  to  other  persons,  and  such  shares  must  be  assigned  to 
the  person  holding  the  same  in  tlie  same  manner  as  they  other- 
wise would  have  been  to  such  heirs,  legatees  or  devisees.* 

Sec.    1255.    Both    partition     and     distribution — Metes     and 
bounds. 

When  both  distribution  and  partition  are  made,  the  several 
shares  in  the  real  and  personal  estate  must  be  set  out  to 
each    individual    in    proportion    to    his    right    by    metes    and 


3  Snyder,  5,420;  Wilson,  1,762;  Richardson  v.  Loup,  80  Cal.  490, 
North  Dakota,  8,217  (1905);  South  22  Pac.  227;  Martinovitch  v.  Mar- 
Dakota,  314  (1004),  identical;  Cali-  sicano,  137  Cal.  354,  70  Pac.  459; 
fornia,  1,677   (Kerr).  Estate  of  Crookes,   125  Cal.  457,  58 

4  Snyder,  5,421;  Wilson,  1,763;  Pac.  89;  Chever  v.  Ching,  82  Cal. 
California,  1,678  (Kerr),  identical;  68,  22  Pac.  1,081;  DeCastro  v. 
North  Dakota,  8,214  (1905),  iden-  Berry,  18  Cal.  97;  Estate  of  Stew- 
tical;  South  Dakota,  315  (1904),  ard,  81  Pac.  78;  Estate  of  Ryder, 
identical;    see  section  construed  by  141  Cal.  371,  74  Pac.  993. 


917  REAL  ACTIONS. — STATUTORY.  §  1256 

bounds,  or  description,  so  that  the  same  can  be  easily  dis- 
tinguished, unless  two  or  more  of  the  parties  interested  con- 
sent to  have  their  shares  set  out  so  as  to  be  held  by  them  in 
common  and  undivided." 

Sec.  1256.  The  rule  when  estate  cannot  be  divided — Owelty 
in  partition — Males  preferred  to  females — Du- 
ties of  commissioners  when  estate  cannot  be 
divided. 

When  the  real  estate  cannot  be  divided  without  prejudice 
or  inconvenience   to   the   owners,   the   court   may   assign  the 
whole  to  one  or  more  of  the  parties  entitled  to  shares  therein, 
who  will  accept  it,  always  preferring  the  males  to  the  females, 
and    among    children    preferring    the    elder   to    the    younger. 
The  parties  accepting  the  whole  must  pay  to  the  other  par-- 
ties  interested  their  just  proportion  of  the  true  value  thereof, 
or  secure  the  same  to  their  satisfaction;   or  in  case  of  the 
minority  of  such  party,  then  to  the  satisfaction  of  his  guard- 
ian,  and  the   true  value   of  the   estate   must   be   ascertained 
and  reported  by  the  commissioners.    When  the  commissioners 
appointed  to  make  partition  are  of  the  opinion  that  the  real 
estate  cannot  be  divided  without  prejudice  or  inconvenience 
to  the  owners,  they  must  so  report  to  the  court,  and  recom- 
mend  that   the  whole   be   assigned   as  herein   provided,   and 
must  find  and  report  the  true  value  of  such  real  estate.     On 
filing  the  report   of  said  commissioners,   and   on  making   or 
securing  payment  as  before  provided,  the  court,  if  it  appears 
just  and  proper,  must  confirm  the  report  and  thereupon  the 
assignment  is  complete,  and  the  title  to  the  Avhole  of  such 
real    estate    vests   in    the   person    to    whom    the    same    is    so 
assigned.^ 

5  Snyder     5,422;     Wilson,     1,764;  e  Snyder,    5,423;     Wilson,    1,765; 

Xorth' Dakota,    8,215    (1905),   iden-  North  Dakota,  8.219    (1005);   South 

tical;      California,      1.679      (Kerr),  Dakota,  317   ( 1004) ,  identical;  Cali- 

identical;        South       Dakota,       316  fornia,  1,680    (Kerr),  identical 
(1904),  identical 


§§  1257-1259         merwine's  trial  of  title  to  land.  918 

Sec.  1257.     The  whole  tract  may  be  assigned  to  whom — The 
payment  by  the  others. 

When  any  tract  of  land  or  tenement  is  of  greater  value 
than  any  one's  share  in  the  estate  to  be  divided,  and  cannot 
be  divided  without  injury  to  the  same,  it  may  be  set  off 
by  the  commissioners  appointed  to  make  partition,  to  any  one 
of  the  parties  who  will  accept  it,  giving  preference  as  pre- 
scribed in  the  preceding  section.  The  party  accepting  must 
pay  or  secure  to  the  others  such  sums  as  the  commissioners 
may  award  to  make  the  partition  equal,  and  the  commission- 
ers must  make  their  award  accordingly ;  but  such  partition 
must  not  be  established  by  the  court  until  the  suras  awarded 
are  paid  to  the  parties  entitled  to  the  same,  or  secured  to 
their  satisfaction.'^ 

Sec.  1258.     The  real  estate  may  be  sold — Manner  of  sale. 

"When  it  appears  to  the  court  from  the  commissioners' 
report  that  it  cannot  be  otherwise  fairly  divided,  and  should 
be  sold,  the  court  may  order  a  sale  of  the  whole  or  any 
part  of  the  estate,  real  or  personal,  by  the  executor  or  ad- 
ministrator or  by  a  commission  appointed  for  that  purpose, 
and  the  proceeds  distributed.  The  sale  must  be  conducted, 
reported  and  confirmed  in  the  same  manner,  and  under  the 
same  requirements  as  provided  in  sections  from  5308  to  5346, 
Wilson,  from  1652  to  1690,  inclusive.* 

Sec.    1259.     The    notice    required — Commissioners    may    take 
evidence — Duties  of. 

Before  any  partition  is  made,  or  any  estate  is  divided  as 
provided  in  this  chapter,  notice  must  be  given  to  all  persons 
interested  in  the  partition,  their  guardians,  agents  or  at- 
torneys, by  the  commissioners,   of  the  time  and  place  when 

7  Snyder,    5,424;     Wilson,     1,766;  8  Snyder,     5,425;     North    Dakota, 

North   Dakota,   8,220    (1905),   iden-  8,222    (1005),   identical;    South  Da- 

tical;    South    Dakota,    314    (1904),  kota,   1,767    (1904),  identical;   Cali- 

identical;   California,   1,681    (Kerr),  fornia,  1,682    (Kerr),  identical, 
identical. 


919  REAL   ACTIONS. — STATUTORY.  §§  1260-1262 

and  where  they  shall  proceed  to  make  partition.  The  com- 
missioners may  take  testimony,  order  surveys  and  take  such 
other  steps  as  may  be  necessary  to  enable  them  to  form  a 
judgment  upon  the  matters  before  them.^ 

Sec.  1260.  The  report  of  the  commissioners — Other  commis- 
sioners may  be  appointed,  when — ^The  degree 
to  be  recorded  and  where. 

The  commissioners  must  report  their  proceedings  and  the 
partition  agreed  upon  by  them  to  the  county  court  in  writing, 
and  the  court  may,  for  sufficient  reasons,  set  aside  the  report 
and  commit  the  same  to  the  same  commissioners  or  appoint 
others;  and  when  such  report  is  finally  confirmed,  a  certified 
copy  of  the  judgment  or  decree  of  partition  made  thereon, 
attested  by  the  judge  under  the  seal  of  the  court,  must  be 
recorded  in  the  office  of  the  register  of  deeds  in  the  county 
where  the  lands  lie.^° 

Sec.  1261.     Commissioners  need  not  be  appointed,  when. 

When  the  county  court  makes  a  judgment  or  decree  as- 
signing the  residue  of  any  estate  to  one  or  more  persons 
entitled  to  the  same,  it  is  not  necessary  to  appoint  commis- 
sioners to  make  partition  or  distribution  thereof,  unless  the 
parties  to  whom  the  assignment  is  decreed,  or  some  of  them 
request  that  such  partition  is  made.^^ 

Sec.  1262.  The  court  has  power  to  hear  and  determine  ques- 
tions of  advancements. 

All  questions  as  to  advancements  made,  or  alleged  to  have 
been  made  by  the  decedent  to  his  heirs,  may  be  heard  and 
determined  by  the  county  court,  and  must  be  specified  in  the 

9  Snyder,  o,42G ;  Wilson,  1,768;  tical;  South  Dakota,  321  (1904), 
Xorth  Dakota,  8,218  (1905),  iden-  identical;  California,  1,GS4  (Kerr), 
tical;    South    Dakota,    320     (1904),       identical. 

identical;   California,  1,683    (Kerr),  u  Snyder,    5,428;    Wilson,    1,770; 

identical.  South    Dakota,    322     (1904);    Cali- 

10  Snyder,    5,427;    Wilson,    1,769;  fornia,  1,685    (Kerr),  identical. 
North   Dakota,  8,221    (1905),   iden- 


§  12G3  merwine's  trial  op  title  to  land.  920 

decree  assigning  and  distributing  the  estate;  and  tlie  final 
judgment  or  decree  of  the  county  court,  or  in  case  of  an 
appeal,  of  the  district  court  or  Supreme  court,  is  binding 
on  all  parties  interested  in  the  estate/- 


Sec.  1263.     Form  for  petition  for  partition,  county  court. 

County  Court, County,  State  op  Oklahoma. 

In  re  Estate  of 

,  Deceased.  No. 


PETITION    FOR    PARTITION. 

Comes  now and  alleges : 

1.  That  he  is  one  of  the  children  and  one  of  the  heirs  at  law 
of ,  deceased. 

2.  That  the  following  are  the  names  and  residences  of  all  of 

the  persons  Avho  are  interested  in  said  estate  of ,  deceased, 

and  the  names  and  place  of  residence  of  all  guardians,  agents 
and  attorneys  residing  in  this  State,  who  represent  any  of  such 
persons  so  interested  in  said  estate,  to-wit:  (Here  set  forth 
names  and  place  of  residence  of  such  persons.) 

3.  That  on  the  day  of ,  19—,  the  said  

was  duly  appointed of  said  estate,  Avho  qualified  and  who 

is  now  performing  the  duties  of  such  office. 

4.  That  said  estate  by  such  has  been  duly  adminis- 
tered, and  that  a  petition  for  such  distribution  is  now  filed  and 
is  pending  in  said  estate  and  in  said  cause. 

5.  That  the  property  of  said  estate  will  vest  in  and  be  as- 
signed for  distribution  herein  to , ,  and ,  in 

common  and  undivided,  and  the  real  estate  will  not  be  divided 
and  set  off  to  them  by  metes  and  bounds  by  said  decree  of  dis- 
tribution. 

The  premises  considered,  your  petitioner  prays  for  a  decree 
setting  off  and  assigning  to  each  of  the  persons  interested  in 

12  Snyder,  5,428;  Wilson,  1,777;  Dakota,  323  (1904),  identical;  Cali- 
INorth  Dakota,  8,212   (1905);  South       fornia,   1,686    (Kerr),   identical. 


921  REAL   ACTIONS. — STATUTORY.  §  1264 

said  estate  his  share  in  severalty ;  that  commissioners  by  order  of 
court  be  appointed  to  assign  and  set  off  to  each  party  his  re- 
spective share  in  severalty,  and  for  such  order  in  the  premises 
as  to  the  court  may  be  proper. 


Petitioner. 


Sec.  1264.     Order  for  hearing  petition  for  partition. 

County  Court, County,  State  of  Oklahoma. 

In  re  Estate  of 

,  Deceased.  No.  — 


ORDER    FOR    HEARING    PETITION    FOR    PARTITION. 

Whereas, ,  one  of  the  heirs  at  law  of ,  deceased, 

has  filed  his  petition  in  said  cause  asking  that  partition  may  be 
made  in  said  estate,  and  that  this  court  appoint  commissioners 
for  that  purpose. 

It  is  ordered  by  this  court  that  on ,  the day  of 

,  19 — ,  at o'clock,  —  m.,  of  said  day,  at  the  court- 
room, is  fixed  as  the  time  and  place  for  the  hearing  of  said 
petition. 

It  is  ordered  that  the  clerk  of  this  court  give  the  time  and 
place  of  said  hearing  to  the  persons  to  whom  the  law  requires 
such  notice  to  be  given  by  posting  such  notices  in  not  less  than 
three  public  places  in  the  county,  the  same  to  be  posted  for  not 
less  than  ten  days  before  the  time  fixed  for  said  hearing. 

In  Witness  Whereof,  I  have  hereunto  affixed  my  hand  this 
day  of ,  19—. 


Judge  of  the  County  Court  in  and  for  said  County  and  State. 


§§1265,1266     merwine's  trial  of  title  to  land.  922 

Sec.  1265.     The  notice  for  the  hearing  of  the  petition. 

County  Court, County,  State  of  Oklahoma. 

In  re  Estate  of 

,  Deceased.  No.  . 


NOTICE  FOR  HEARING  OF  PETITION  FOR  PARTITION. 

,  having  filed  his  petition  for  the  partition  of  tlie  estate 


of ,  deceased,  praying  for  the  partition  thereof  among  the 

parties   entitled   thereto,   notice   is   given    that   on   ,   the 

day  of  ,  19 — ,  at  o'clock,  —  m.,  of  said 

day,  at  the  courtrcom  of  said  court,  is  fixed  as  the  time  and 
place  for  the  hearing  of  said  petition.     All  persons  interested 
may  appear  at  said  time  and  place  and  may  be  heard  on  the 
matters  alleged  and  prayed  for  in  said  petition. 
Dated  this day  of ,  10—. 


Clerk  of  said  Court. 


Sec.  1266.     Form  for  order  of  the  court  appointing  commis- 
sioners to  partition. 

County  Court, County,  State  of  Oklahoma. 

In  re  Estate  of 

■ ,  Deceased.  No.  . 


ORDER  APPOINTING  COMMISSIONERS  TO  PARTITION. 

This  day  this  cause  came  on  to  be  heard  upon  the  petition 
for  partition  of  the  property  in  said  estate  as  prayed  for  in  said 

petition,  and  petitioner  appearing  by ,  his  attorney,  and 

the  court  finds  that  due  notice,  as  required  by  law  and  the  orders 
of  this  court,  was  given  of  the  time  and  hearing  hereof,  and 
that  all  parties  interested  are  now  subject  to  the  jurisdiction  of 
this  court,  and  it  appearing  from  the  evidence  and  the  records 
and  files  in  this  cause  that  an  order  and  decree  of  distribution 
has  been  made  herein,  the  court,  from  the  evidence  adduced  in 


923  REAL   ACTIONS. — STATUTORY.  §  1267 

this  case,  finds  that  partition  should  be  made  and  that  commis- 
sioners in  partition  should  be  appointed  for  that  purpose. 

It  is  ordered  that  ,  and  ,  be,  and  they 

are  hereby,  appointed  commissioners  herein,  and  required  to 
give  notice  as  required  by  law,  and  to  make  partition  of  the  fol- 
lowing property:  (Here  describe  it)  by  assigning  and  setting 
over  the  same  to  the  following  persons  in  severalty,  the  same 
being  so  marked  and  described  that  each  share  be  distinguished, 

to-wit :  To ,  the part  thereof ;  to ,  the 

undivided  part  thereof,  and  to  ,  the  undivided 

part  thereof. 

It  is  further  ordered  that  the  partition  so  to  be  made  be 
reported  to  this  court  forthwith. 

Dated  this day  of ,  19—. 


Judge  of  the  County  Court  aforesaid. 


Sec.  1267.     Form  for  oath  of  the  commissioners  in  partition. 

County  Court, County,  State  of  Oklahoma. 

In  re  Estate  of 

,  Deceased.  No.  . 

"We,  ,  and  ,  commissioners  appointed  to 

make  partition  of  the  property  of  ,  deceased,  being  duly 

sworn,  say  that  we  will,  impartially,  faithfully  and  to  the  best 
of  our  ability,  discharge  our  duties  as  such  commissioners 
according  to  law.  ~    » 


Sworn  to  before  me  and  subscribed  in  my  presence  this 
day  of ,  19—. 


[Seal.]  Notary  Public. 

My  commission  expires . 


§  1268  merwine's  trial  op  title  to  land.  924 

Sec.     1268.     Report    of    commissioners    awarding    partition 
among  the  heirs. 

County  Court, County,  State  of  Oklahoma. 

In  re  Estate  of 

,  Deceased.  No.  . 


REPORT    OF    COMMISSIONERS. 

To   the  Honorable   County   Court  in   and  for  County, 

Oklahoma  : 

The  undersigned,  as  coramissioners  in  partition,  each  having 
been  first  duly  sworn,  according  to  law,  and  having  received  a 
certified  copy  of  the  order  issuing  out  of  this  court  appointing 
us  as  such  coramissioners,  and  the  order  and  decree  of  this  court 
giving  the  manner  of  the  distribution  and  partition  of  the  estate 

of  ,  deceased,  and  the  parties  entitled  thereto,  and  the 

proportion  thereof,  certified  copies  of  such  appointment  and 
order  of  distribution  and  partition  having  been  issued  to  us  as 
our  power  and  authority  to  act  in  the  premises,  and  our  said 

oath  being  attached  hereto,  in  ,  all  of  which  will  more 

fully  appear  by  tlie  same  which  is  annexed  hereto,  respectfully 
report  as  follows : 

We  gave  notice  according  to  law  to  all  persons  interested  in 
said  partition  of  the  time  and  place  of  the  hearing,  at  which 
time,  having  heard  the  evidence  and  proofs  offered,  and  after 
viewing  the  property,  did  make  partition  thereof  as  follows : 

We  assigned   to  the  property   described   as   follows: 

(Here  specifically  describe  it.)  We  assigned  to the  prop- 
erty described  as  follows:  (Here  specifically  describe  it),  etc. 

Given  under  our  hands  this day  of ,  19 — . 


Commissioners  in  Partition. 


925  REAL  ACTIONS. — STATUTORY.         §§  1269,  1270 

Sec.  1269.     Confirmation  of  commissioners'  report. 

County  Court, County,  State  of  Oklahoma. 

In  re  Estate  of 

,  Deceased.  No.  . 


DECREE    CONFIRMING   COMMISSIONERS'   REPORT. 
This  cause  came  on  to  be  heard  upon  the  report  of  


and  ,  returned  herein  by  said  commissioners  for 

confirmation  and  approval  thereof,  and  the  same  was  examined 
by  the  court  and  heard  upon  the  evidence,  and  the  court,  finding 
tliat  the  same  is  regular  and  in  due  form  of  law,  and  according 
to  the  former  orders  of  the  court  herein,  does  approve  and  con- 
firm the  same,  and  it  is  ordered,  adjudged  and  decreed  that  each 
of  said  parties  hold  in  severalty  and  in  fee  simple  the  property 
set  off  and  assigned  them. 

Dated  this day  of ,  19 — . 


Judge  of  the  County  Court  aforesaid. 

Sec.  1270.     The  notice  to  be  given  by  the  commissioners  in 
partition  of  the  time  and  place  of  their  hearing. 

County  Court, County,  State  of  Oklahoma. 

In  re  Estate  of 

,  Deceased.  No.  . 


and ,  etc.,  will  take  notice  that 

the   commissioners   whose  names  hereto  are  attached   and  who 

were  by  the  county  court  of County,  Oklahoma,  appointed 

to  make  partition  of  the  estate  of  ,  deceased,  will  meet 

at  ,  in  ,  Oklahoma,  at  ,  on  the  day 

of ,  19 — ,  at o'clock,  —  m.,  of  said  day,  to  perform 

their  duties  by  making  such  partition. 

You  may  be  heard  in  the  premises  at  said  time  and  place. 


Commissioners  in  Partition. 


§§  1271-1273         merwine's  trial  of  title  to  land.  f)2G 

Sec.  1271.     Form  for  return  of  commissioners  assig^ning  estate 
to  one  of  the  parties. 

County  Court, County,  State  ok  Oklahoma 

In  re  Estate  of 

,  Deceased.  No.  . 


RETURN   OF   CO.M.MISSIOXKRS. 

(Follow  form  to in  form  at  Sec.  ,  and  proceed 

with) 

And  ,  one  of  the  parties  inti-rt'stcd.  is   willing,  under 

the  statute,  to  pay  tlie  wliole  value,  or  seeure  its  pityinent,  as 
provided  by  law.     We  here   annex  a   true   description   of   the 


Sec.  1272.     Form  for  report  of  commissioners  when  property 
is  to  be  sold. 

County  Court, County,  State  of  Oklahoma. 

In  re  Estate  of 

,  Deceased.  No.  , 

Here  follow  with  form  at  Sec. ,  to  ,  tlien  begin, 

and  state  that  said  real  estate  cannot,  in  our  judgment,  be 
divided  fairly  amongst  the  parties  interested,  and  we  therefore 
recommend  that  said  real  estate  above  herein  described  be  sold, 
and  the  proceeds  divided  and  distributed  among  the  parties 
in  accordance  with  their  respective  interests. 

Sec.  1273.     The  order  for  sale  in  partition  and  a  distribution 
of  proceeds. 

County  Court, County,  State  of  Oklahoma. 

In  re  Estate  of 

,  Deceased.  ;j«^q   

ORDER  FOR  SALE  AND  DISTRIBUTION  OF  PROCEEDS. 
This  cause  this  day  coming  on  for  hearing  on  the  return  of  the 
commissioners  appointed  herein  to  make  partition  of  the  prop- 
erty of ,  deceased,  of  their  report,  and  it  appearing  from 


927  REAL   ACTIONS. — STATUTORY.  §  1273 

said  report  that  the  property  of  said  estate  cannot  be  divided 
without  manifest  injury  thereto,  and  to  the  prejudice  of  the 
parties  interested  therein;  that  none  of  the  parties  are  willing 
to  take  the  whole  of  said  estate  and  pay  or  secure  the  payment 
of  the  value  thereof  to  the  other  parties  having  an  interest 
therein,  and  that  it  is,  by  reason  of  the  premises,  necessary  to 
sell  the  following  described  property  of  said  estate:  (Here  de- 
scribe it  specifically.) 

It  is  Therefore  ordered  that  said  property  be  sold  and  the 
proceeds  arising  from  such  sale  be  distributed  according  to  law 
to  the  parties  entitled  thereto. 

It  is  further  ordered  that  the  administrator,  before  making 
such  sale,  make,  execute  and  file  herein  his  additional  bond  in 
the  sum  of  $ . 

Dated  this day  of ,  19—. 


Judge  of  said  County  Court. 


§1274 


MERWINE  S   TRIAL   OF    TITLE   TO    I^VND. 


928 


5.     THE  PRODUCTION  OF  EVIDENCE  IN  REAL 
ACTIONS. 


SECTION 

1274.  In   ejectment. 

1275.  Proof   of   title    in   the   action 

to  recover  land. 

1276.  When  evidence  of  title  imma- 

terial. 

1277.  Tlie  degree  of  proof  in  eject- 

ment. 

1278.  Admissibility    of   deeds — Deed 

not  in  chain  of  title — Void 
description. 

1279.  Deed    not   executed    according 

to  law  may  not  be  intro- 
duced in  evidence  in  actions 
to  determine  title. 

1280.  The    authentication    of    deeds 

and  instruments  of  convey- 
ance. 

1281.  The    statute    in    this    Stat(-- 

Instrument  itself  may  be 
introduced,   when. 

1282.  The  record  of  the  instrument 

may  be  introduced,   when. 

1283.  Meaning  of  the  term  "not  in 

possession  or  control"  of 
party. 

1284.  Register  of  deeds  to  transfer 

old  records  to  his  office, 
when. 

1285.  Records  transcribed  from  any 

county,  and  effect  of  such 
record   in  evidence. 

1286.  Copies   from    any    public    rec- 

ord, how  certified  and  how 
admitted. 

1287.  Copies    of   records   of   foreign 

courts,  how  authenticated 
and  how  admitted. 


SECTION 

1288.  E.xemplificd   copies  of  govern- 

ment    books     may     be     ad- 
mitted  in  evidence. 

1289.  Evidence  of  receipts  from  tlio 

register  of  the  land  office. 

1290.  Copies  of  [Kipers  in  register  or 

receiver's  office  may  be  u.-ied 
in  evidence. 

1291.  The     admis^icin     of     deed     or 

other  document  in  writing 
Admission  if  required,  when. 

1292.  Production  of  deeds  and  other 

papers — Inspection  of  docu- 
ment books. 

1293.  Copy  of  deed  or  other  instru- 

ment in  writing  may  be 
demanded,    when. 

1294.  Births— Deaths— Evidence     of 

marriage — Copies  of  mar- 
riage register. 

1295.  Certified   cnities  of  the  enroll- 

ment records  of  the  commis- 
sioners to  the  five  civilized 
tribes  evidence  as  to  blood 
and  age  of  the  allotee. 

1296.  Affidavit  as  to  age  a  declara- 

tion against  interest  and 
admissible  in  evidence — 
Party  competent  to  testify 
as  to  age. 

1297.  The     law     making     the     rolls 

final  as  to  blood  and  age  of 
an  allotee   is  constitutional. 

1298.  Admissibility  of  rolls  to  show 

tribal  blood  of  the  allotee. 
1298a.  The  enrollment  records  have 
always   been    conclusive    as 
to    blood    and    age    of    an 
allotee. 


Sec.  1274.    Evidence  in  ejectment. 

A  deed  from  one  not  shown  to  have  any  interest  in  or 
connection  with  the  land  proposed  to  be  conveyed,  is  inad- 
missible as  evidence  of  title  in  an  action  for  its  recovery; 
and  an  instrument  purporting  to  convey  land,  in  which  the 


929  REAL  ACTIONS. — STATUTORY.  §  1274 

description  is  so  vague  and  uncertain  as  to  be  meaningless, 
and  there  is  nothing  in  the  deed  by  which  the  identity  of  the 
premises  can  be  ascertained,  is  void.  The  order  in  which 
evidence  shall  be  received  must  to  a  great  degree  be  left 
to  the  discretion  of  the  court  trying  the  case,  and,  unless  that 
discretion  has  been  abused,  its  action  furnishes  no  ground 
for  complaint.^ 

Where  a  defendant  in  an  action  of  ejectment  claims  title 
based  on  a  tax  deed,  and  also  upon  a  decree  quieting  title 
in  his  antecedent  grantor  in  possession  under  such  tax  deed, 
and  in  an  action  to  which  plaintiff  was  a  party,  the  validity 
or  invalidity  of  the  tax  deed  is  not  material  unless  the 
decree  quieting  title  is  absolutely  null  and  void,  and  subject 
to  the  collateral  attack  made  in  the  ejectment  action.^ 

It  is  error  to  reject  an  offer  of  evidence  tending  to  prove 
that  the  holder  of  a  quitclaim  deed  from  one  who  had 
received  a  warranty  deed,  and  had  then  executed  back  to  his 
grantor  a  bond  for  reconveyance,  knew  that  the  deed  and 
bond  were  in  fact  given  as  security  for  money,  and  not 
for  a  conveyance  and  reconveyance  of  the  land.^ 

In  tlie  action  plaintiff  need  not  state,  on  offering  in  evi- 
dence the  record  of  the  patent  to  the  land  in  controversy, 
that  he  intends  to  follow  up  the  conveyance  of  title  from  the 
patentee  down  to  himself,  as,  without  proof  of  this  original 
conveyance  of  title,  proof  of  other  conveyances  would  be 
futile.  And  where  plaintiff  claims  title  through  a  sheriff's 
deed,  he  has  a  right  to  begin  at  the  source  of  his  title,  and 
go  forward,  and  need  not  begin  at  the  sheriff's  deed,  and 
trace  his  title  down  to  the  Government.* 

In  an  action  for  the  recovery  of  real  estate  where  the 
answer  is  a  general  denial,  on  trial,  the  plaintiff  must  show  a 
perfect  title,  or  state  all  the  facts  which  correspond  with 
that   degree    of  proof.      When  in   such   action   the   plaintiffs 

1  McBride  v.  Steinweden,  72  Kan.  s  Pope  v.  Nichols,  61  Kan.  230,  59 
508,    83    Pac.   822.  Pac.  257. 

2  Priest  V.  Robinson,  64  Kan.  416,  *  Green  v.  Holmes,  9  Kan.  App. 
67   Pac.    850.  886,  58  Pac.  128. 


§  1274  merwine's  trial  of  title  to  land.  030 

show  a  deed  to  their  ancestors,  and  then  rest,  they  have  not 
made  out  a  prima  facie  case;  nor  is  this  defect  supplied  by 
the  defendant  who  puts  in  evidence  a  deed  from  the  admin- 
istrator of  the  estate  of  phiintill's'  ancestors,  to  his  vendoi-s, 
without  any  testimony  that  he  hokls  uiuh-r  the  title.  Tlu; 
deed  is  some  evidence  that  he  holds  under  it.  hut  not  con- 
clusive.^ 

It  was  held  that  where  parents  and  their  children  unite 
in  a  deed  conveying  lands  belonging  to  the  estate  of  a 
deceased  member  of  the  family,  a  statement  that  the  persons 
so  joining  in  the  deed  are  heirs  of  the  decedent,  is  admissible 
as  evidence  of  the  identity  of  a  sister  of  the  decedent,  joining 
in  the  conveyance  as  an  heir  under  a  surname  dilVerent  from 
her  maiden  name.® 

Where  the  defendant  claims  a  right  of  possession,  only 
under  a  contract  with  the  plaintiff  for  the  purchase  of  the 
property,  evidence  of  title  on  the  plaintiff's  part,  becomes 
immaterial.^ 

In  an  action  of  ejectment,  proof  of  possession  under  claim 
of  title  for  over  fifteen  years  is  sufficient  to  sustain  a  finding 
of  title  as  against  a  party  under  no  disa])ility,  and  claiming 
title  only  by  virtue  of  a  recent  and  insufficient  tax  deed.' 

5  Bancroft  v.  Chambers,  10  Kan.  ploadod  by  liim,  wliicli  purported  to 
275;  Clayton  v.  School  Dist.,  20  decide  some  controversy  between  the 
Kan.  257;  Allen  v.  Houston,  21  Kan.  railway  company  and  M,  adversely 
201.  In  an  action  brought  by  C  to  the  company,  but  the  questions 
against  M  to  recover  a  tract  of  land,  involved  and  decided  were  not 
C  oflFered  evidence  tending  to  show  shown.  Held,  that  the  notice  did 
that  the  land  was  granted  by  the  not  overthrow  tlie  prima  facie  show- 
United  States  to  a  railway  company,  ing  of  a  right  of  recovery  in  C,  and 
through  which  C  claimed  the  land.  that  there  was  sufficient  evidence  to 
M  subsequently  attempted  to  pre-  sustain  the  judgment  in  her  favor, 
empt  the  land  as  public  land,  claim-  IMosier  v.  Clapp,  44  Kan.  450,  24 
ing   that,   while   it   was   within   the  Pac.  951. 

limits  of  the  grant,  it  was  excepted  c  King  v.  Hyatt,  51  Kan.  504,  32 

from   it;   but  the  only  evidence  of-  Pac.  1105. 

fered   to   support   his    claim   v.'as   a  '''  Baldridge  v.   Centgraf,   82   Kan. 

notice    of    a    decision    by    the    local  240,  108  Pac.  83. 

land  officers,  made  three  days  prior  8  Hollenbeck  v.   Ess,   31   Kan.   88, 

to    the    trialj    and    which    was   not  1  Pac.  275. 


931 


REAL  ACTIONS. — STATUTORY,  §  1275 


Where,  on  the  trial  of  an  action  in  ejectment,  the  record 
of  a  deed  was  offered  in  evidence,  purporting  to  have  been 
made  and  signed  by  George  H.  Case,  but  the  certificate  of 
acknowledgment  was  to  the  effect  that  the  execution  of  the 
instrument  was  the  act  of  George  H.  Crane;  and  there  was 
evidence  that  the  original  deed  was  not  in  the  possession 
or  under  the  control  of  the  party  offering  the  same;  and 
there  is  further  evidence  from  the  grantee  named  in  the 
deed  that  the  acknowledging  officer,  grantor,  and  attesting 
witness  were  dead ;  and  that  he  was  present  at  the  time  the 
deed  was  executed  by  George  H.  Case,  and  was  cognizant  of 
such  fact;  held,  that  the  record  of  such  deed  was  admissible 
in  evidence,  notwithstanding  the  apparent  error  in  the  cer- 
tificate of  acknowledgment.' 

Sec.  1275.     Proof  of  title  in  the  action  to  recover  land. 

In  an  action  for  the  recovery  of  the  possession  of  land 
from  a  defendant  claiming  title  by  adverse  possession,  the 
plaintiff  is  required  to  show  his  claim  of  title  to  the  land 
in  dispute  by  a  chain  of  conveyances  from  the  Government, 
or  from  a  grantor  proved  to  have  been  in  the  possession  of 
the  land  is  dispute  when  he  executed  the  conveyance  therefor. 

It  has  been  said  that  a  prima  facie  case  is  made  by  showing 
a  conveyance  to  plaintiff  or  one  of  his  grantors  in  the  chain 
of  title,  by  one  then  in  possession  and  occupancy  of  the  land. 
If  this'  is  not  done,  he  must  run  his  title  by  deed  or  other 
necessary  proof,  to  someone  shown  or  admitted  to  be  the 
common  source  of  title,  back  to  the  Government.^" 

«Heilv.  Redden,  45  Kan.  562,  26  20    Ohio    State,    99;    Blackburn    v. 

Pac   2.     Attention  is  directed  to  the  Blackburn,  8  0.  81;  Avery  v.  Sites, 

chapter  in  this  book  relating  to  con-  W.  56.     The  following  rule  is  given 

vevances  in  actions  concerning  real  by  Newell  on  Ejectment    page  585: 

-  "In   actions   of   ejectment   it  is   sei- 

^'I'lMiddletonv.Wostonney.TC.C.  dom    necessary,    especially    in    the 

268-    Blake    v     Davis.    20    0.    239:  older    portions    of    the    country,    to 

Hart  V.   Johnson.   6   O.   87:    Newell  go    back    to    the    government    as    a 

on  Ejectment,   585:   Cunningham  v.  source  of  title  or  ^^^^^^^l^^^'^^ 

Harper    W.    366;    Star   v.   Wright,  the  chain  of  the  plaintiff  s  title.    The 


§§1276,1277       merwine's  trial  op  title  to  land.  932 

In  an  action  of  ejectment,  plaintiff  need  not  state,  on 
offering  in  evidence  the  record  of  the  patent  to  the  land  in 
controversy,  that  he  intends  to  follow  up  the  conveyance  of 
title  from  the  patentee  down  to  himself,  as,  without  proof 
of  this  original  conveyance  of  title,  proof  of  other  convey- 
ances would  be  futile. 

Where  plaintiff  claims  title  through  a  sheriff's  deed,  he  has 
a  right  to  begin  at  the  source  of  his  title,  and  go  forward, 
and  need  not  begin  at  the  sheriff's  deed,  and  trace  his  title 
down  to  the  Government.^^ 


Sec.  1276.    When  evidence  of  title  immaterial. 

In  ejectment,  where  the  defendant  claims  a  right  of  pos- 
session only  under  a  contract  with  the  plaintiff  for  the 
purchase  of  the  property,  evidence  of  title  on  the  plaintiff's 
part  becomes  immaterial. ^^ 


Sec.  1277.     The  degree  of  proof  in  ejectment. 

Where  the  answer  is  a  denial  of  title,  the  plaintiff  will  be 
required  to  show  a  perfect  title,  or  a  state  of  facts  that 
dispenses  with  that  degree  of  proof.  Where  in  such  action 
the  plaintiff  shows  a  deed  from  the  ancestor,  they  have  not 
made  out  a  prima  facie  ease;  nor  is  this  defect  supplied  by 
the  defendant  who  puts  in  evidence  a  deed  from  the  admin- 
istrators of  the  plaintiff's  ancestor  to  his  vendors,  without 
any  testimony  that  he  holds  under  the  title.  The  deed  is 
some  evidence  that  he  holds  under  it,  but  is  not  conclusive.^* 


government  in   this   country  is  the  latest  common  source  as  a  starting 

common  source  of  all  titles,  but  it  point  in  the  chain  of  his  title." 

very  frequently  happens  that  a  com-  n  Green  v.  Holmes,  9  Kan.  App. 

mon  source  of  title  may  be  found  886,  58  Pac.  128. 

after    the    government    parted   with  12  Baldridge  v.  Centgraf,  82  Kan. 

its  title  to  the  lands  in  controversy.  240,   108   Pac.  84. 

In   such   cases   the   plaintiff   is   not  1 3  Bancroft  v.  Chambers,  10  Kan. 

required  to  go  back  further  than  the  275. 


933  REAL  ACTIONS. — STATUTORY.        §§  1278.  1279 

Sec.  1278.  Admissibility  of  deeds— Deed  not  in  chain  of 
title — Void  description. 
A  deed  offered  as  evidence  in  the  action  on  behalf  of  one 
not  appearing  in  the  chain  of  title,  and  not  in  possession  of 
the  land  under  color  of  title,  will  not  be  admitted;  and 
where  the  description  in  a  deed  is  so  vague  and  indefinite 
as  to  not  connect  it  in  any  way  with  the  description  of  the 
land  in  controversy,  the  deed  cannot  be  admitted  in  evi- 
dence:^* 

Sec.  1279.    Deed  not  executed  according  to  law  may  not  be 
introduced  in  evidence  in  actions  to  determine 
title. 
The  law  provides  a  way  by  which  title  to  the  real  estate 
of  anyone  can  be  determined  by  an  inspection  thereof  from 
the    records   in    the    recording    office,    and    every    instrument 
there  can  be  examined,  and  from  the  contents  thereof  it  can 
be  determined  whether  the  same  is  sufficient  to  convey  title. 
In  an   action  by  which   title  is  to   be   determined,   before   a 
deed  may  be  introduced,  it  must  be  executed  and  acknowl- 
edged as  prescribed  by  law,  for  if  it  were  not  so,  then  any 
instrument   of  writing   containing  words   of   grant   and   con- 
veyance,  could  be  made   to  take   the  place   of  the  properly 
executed  deed.     A  deed,  the  acknowledgment  of  which  does 
not   contain   the   seal   of  the   officer  taking  the   acknowledg- 
ment,   or   does   not   contain   the  name   of  the   person   whose 
acknowledgment  is  taken,  is  void.     The  reason  is  well  under- 
stood, and  it  has  been  adopted  for  the  safety  and  security 
of  land  titles.     This  law  is  supported  by  a  long  list  of  au- 
thorities.^"* 

14  McBride  v.  Steinwaden,  72  Kan.  la.  60 ;  Wills  v.  Atkinson,  24  Minn. 

508      83     Pac.     822;      Bancroft     v.  161;   Barrett  v.  Proskaner,  62  Ala. 

Chambers,   10  Kan.   364;   McKibben  486;   Hayden  v.  Wescotte,  11  Conn. 

V    Newell    41   111.  461;    Kennedy  v.  129;    Hiss   v.   McCabe,   45  Md.   77; 

Bogart,   7    Serg.    &   R.   C.    Pa.    97;  Smith    v.    Hunt,    13    Ohio,   260,    42 

Scrock  V.  Zubler,  34  Pac.  38.  Am.  Dec.  201. 

isWarvells  on  Vendors,  Sees.  508 
and  511;  Schaffenbery  v.  Bishop,  35 


§§  1280-1282        merwine's  trial  op  title  to  l.vnd.  934 

Sec.  1280.  The  authentication  of  deeds  and  instruaents  of 
conveyance. 
Before  the  matter  was  changed  by  legislation  in  this  Rtate, 
there  were  two  kinds  of  documents — attested  and  unat- 
tested— which  required  to  be  authenticated  before  they  could 
be  offered  in  evidence.  It  has  always  been  the  rule,  in  the 
absence  of  any  statute  on  the  subject,  that  all  attested  docu- 
ments must  be  proved  by  tliose  Avhose  names  wt-rt"  attached 
thereto  as  subscribing  witnesses.  The  unattested  document 
must  be  proved  by  the  testimony  of  those  wlio  know  the 
handwriting  of  the  maker. 

Sec.  1281.  The  statute  in  this  State — Instrument  itself  may 
be  introduced,  when. 
All  instruments  affecting  real  estate  and  executed  and 
acknowledged  in  substantial  compliance  herewith  shall  be 
received  in  evidence  in  all  courts  without  finthcr  proof  of 
their  execution;  and  in  all  cases  where  copies  or  other  instru- 
ments might  lawfully  be  used  in  evidence,  copies  of  the 
same,  duly  certified  from  the  records  by  the  register  of 
deeds  may  be  received  in  evidence;  and  if  the  same  need 
not  be  recorded  to  be  valid  for  the  purpose  for  which  such 
evidence  is  offered,  a  copy  duly  verified  by  oath  or  atVidavit 
of  any  person  knowing  the  same  to  be  a  true  copy  may  be 
received  in  evidence.^® 

Sec.  1282.  The  record  of  the  instrument  may  be  introduced, 
when. 
The  books  and  records  required  by  law  to  be  kept  by  any 
probate  judge,  county  clerk,  county  treasurer,  register  of  deeds, 
clerk  of  the  district  court,  justice  of  the  peace,  police  judge  or 
other  public  ofiicers,  may  be  received  in  evidence  in  any  court; 
and  when  any  such  record  is  of  a  paper,  document  or  instru- 
ment authorized  to  be  recorded,  and  the  original  thereof  is 
not   in   the   possession,    or   under   the   control   of   the   party 

16  Snyder,  1,209;  Wilson,  902. 


935  REAL    ACTIONS. — STATUTORY.  §§1283,1284 

desiring  to  use  the  same,  such  record  shall  have  the  same 
effect  as  the  original;  but  no  public  officer  herein  named  or 
other  custodian  of  the  public  records  shall  be  compelled  to 
attend  any  court,  officer  or  tribunal  sitting  more  than  one 
mile  from  his  office  with  any  record  or  records  belonging  to 
his  office  or  in  his  custody  as  such  officer.^^ 

Sec.  1283.     Meaning  of  the  term  "not  in  possession  or  con- 
trol" of  party. 

The  Supreme  Court  of  Kansas,  in  construing  this  section 
of  our  statute,  decided  that  the  records  of  a  register  of  deeds 
may  be  received  in  evidence  to  prove  an  instrument  author- 
ized to  be  recorded  by  the  statute  therein,  when  the  original 
thereof  is  not  in  the  possession  or  under  the  control  of  the 
party  desiring  to  use  the  same.  If  it  appears  that  the  written 
instrument  has  been  executed  to  the  adverse  or  opposing 
party,  and  the  party  desiring  to  use  the  same  is  not  entitled 
to  the  custody  thereof,  the  presumption  is  that  it  is  not  in 
his  possession  or  control. ^^  Again,  the  same  court  held  in 
another  case  that  only  that  degree  of  proof  is  necessary  to 
satisfy  the  court  of  the  existence  of  the  fact  that  the  orig- 
inal is  not  in  the  possession  or  control  of  the  party  desiring 
to  introduce  it  in  evidence  at  the  trial.^^ 

Sec.  1284.  Register  of  deeds  to  transfer  old  records  to  his 
office,  when. 
The  register  of  deeds  of  any  county  in  this  State,  wherein 
is  situated  a  town  in  which  prior  to  November  sixteen, 
nineteen  hundred  and  seven,  an  office  for  the  filing  and 
recording  of  deeds,  mortgages,  liens  and  other  instruments 
was  maintained  by  the  United  States,  is  hereby  authorized, 
empowered  and  directed  to  receive  and  to  transfer  to  his 
office  all  the  records,  files,  books  and  instruments  kept  in  such 
office  and  which  pertain  to  and  properly  belong  in  the  office 
of  register  of  deeds,  and  when  so  transferred,  such  records, 

IT  Snyder,    5,908;    Wilson,    4,574;  i9  Stratton    v.    Hawks,    43    Kan. 

Kansas,   4,836,   identical.  538,  23  Pac.  591. 

18  Mclvcan    v.    Webster,    45    Kan. 
G44,  26  Pac.  10. 


§  1285  MERWINE'S   TRI.VIi    OF    TITLE    TO    LAND.  936 

files,  books  and  instruments  sliall  Ix'  and  bceome  a  part  of  the 
permanent  records  of  the  office  of  the  register  of  deeds  in 
such  county.-" 

Sec.  1285.  Records  transcribed  from  any  county,  and  effect 
of  such  record  in  evidence. 
The  board  of  county  commissioners  of  the  several  counties 
of  this  State  are  authorized  and  empowered  to  copy  and 
transcribe,  or  to  have  copied  and  transcribed,  any  part  of 
the  records  of  any  other  county  whenever  such  records  eflfect 
such  county  desiring  such  transcript  or  property  situate 
therein.  Such  transcript  sliall  be  made  in  a  well  InMiiid 
book  and  the  person,  or  persons  making  such  transcript  shall 
verify  the  correctness  under  oath.  One  oath  shall  be  suffi- 
cient to  verify  a  volume  of  such  tran.scripts.  Such  transcribed 
records  shall,  wlien  approved  by  the  board  of  county  com- 
missioners and  placed  in  the  office  of  the  regi.ster  of  deeds, 
be  and  become  a  part  of  the  permanent  records  of  his  office. 
And  the  record  of  all  instruments  contained  in  such  tran- 
scripts shall  have  the  same  force  and  etTcct  as  if  such  instru- 
ment was  originally  recorded  in  said  county.  Each  register 
of  deeds  who  receives  such  records  under  this  act  shall  have 
the  same  authority  relative  to  the  same  as  if  they  were  records 
of  his  own  office;  he  shall  have  authority  to  relea.se  mort- 
gages therein  recorded  in  the  same  manner  now  provided  by 
law;  to  make  certified  copies  of  all  such  records,  and  do  such 
other  acts  in  relation  to  the  same  as  the  clerks  of  the  United 
States  courts  could  have  done  had  there  been  no  change  from 
territorial  to  State  government.  The  certified  copies  of  such 
records,  when  made  by  the  register  of  deeds  having  custody 
of  the  same  under  this  act,  under  his  hand  and  seal,  shall 
be  admissible  in  evidence  in  any  proceeding,  whenever  com- 
petent, in  the  same  manner  as  provided  by  law  for  the 
admission  of  copies  of  other  papers  required  to  be  filed  or 
recorded  in   any  public  office.^i 

20  Snyder,  1,741;  Act  of  1908.  =1  Snyder,   1,742,  1,743,  1,745  and 

1,746;    Act  of   1908. 


^'^'^  REAL  ACTIONS. — STATUTORY.         §§  1286,  1287 

These  provisions  of  the  statute  relating  to  the  public 
records  are  quite  important  in  cases  where  one  is  called  upon 
to  prove  title  through  homestead  and  allotment  deeds,  the 
records  of  which  were  made  from  copies  made  from  the 
originals.  It  is  only  by  virtue  of  the  statutes  that  either 
the  records  of  the  same  or  certified  copies  of  the  record  are 
admissible. 

Sec.  1286.  Copies  from  any  public  record,  how  certified  and 
how  admitted. 

Copies  of  all  papers  authorized  or  required  by  law  to  be 
filed  or  recorded  in  any  public  office,  or  of  any  record 
required  by  law  to  be  made  or  kept  in  any  such  office,  duly 
certified  by  the  officer  having  the  legal  custody  of  such  paper 
or  record,  under  his  seal,  if  he  have  one,  may  be  received  in 
evidence  with  the  same  effect  as  the  original,  when  such 
original  is  not  in  the  possession  or  under  the  control  of  the 
party  desiring  to  use  the  same." 

In  order  that  the  copy  may  be  introduced  under  this  pro- 
vision of  the  statute,  it  must  first  be  shown  not  to  be  in  the 
possession  or  control  of  the  party  desiring  to  introduce  the 
same.  It  is  error  for  the  court,  if  the  adverse  party  object 
thereto,  to  allow  a  copy  to  be  introduced  without  first  show- 
ing that  the  party  asking  for  its  introduction  comes  within 
the  requirement  of  the  statute.-^ 

Certified  copies  offered  in  evidence  under  the  statute  can- 
not be  rejected  simply  because  copies  had  not  been  furnished 
to  a  plaintiff  under  a  written  demand  therefor.-* 

Sec.  1287.     Copies  of  records  of  foreign  courts,  how  authenti- 
cated and  how  admitted. 
Copies   of   records   and   the   proceedings   in   the   courts   of 
foreign  countries  may  be  admitted  in   evidence  upon  being 

22  Snyder,    5,892;    Wilson,   4,559;  23  pjlcher  v.  Atchison,  7  Pac.  613, 

Kansas,     4,820      (1901),     identical.  34  Kan.   46. 

See    herein,    and    aiithorities    there  24  Hammerslough    v.    Hackett,    1 

cited  on  this  subject.  Pac.  41. 


§§1288,1289        merwine's  trial  of  title  to  i^vnd.  938 

authenticated  as  follows:  First,  l)y  the  otlicial  attestation 
of  the  clerk  or  officer  in  whose  custody  such  records  are 
legally  kept;  and,  second,  by  the  certificate  of  one  of  the 
judges  or  magistrates  of  such  court,  tliat  the  person  so 
attesting  is  the  clerk  or  officer  legally  intrusted  with  the 
custody  of  such  records,  and  that  tlu'  signature  to  his  at- 
testation is  genuine;  and,  lliiid.  liy  tlie  oHicial  certificate  of 
the  officer  who  has  the  custody  of  the  principal  seal  of  the 
Government  under  whose  authority  the  coui't  is  held,  attested 
by  said  seal,  stating  that  such  court  is  duly  constituted, 
specifying  the  general  nature  of  its  jurisdiction,  and  verify- 
ing the  seal  of  the  court.'-'' 

Sec.  1288.  Exemplified  copies  of  Government  books  may  bo 
admitted  in  evidence. 
Exemplification  from  the  l)ooks  of  any  of  the  departments 
of  the  Government  of  the  United  States,  or  any  papers  filed 
therein,  shall  be  admitted  in  evidence  in  the  same  manner 
and  with  like  effect  as  the  originals,  when  attested  by  the 
officer  having  the  custody  of  such  originals.  The  signature 
of  the  officer  to  any  certificate  or  document  hereinbefore 
mentioned  shall  be  presumed  to  be  genuine  until  the  con- 
trary is  shown.'" 

Sec.  1289.    Evidence  of  receipts  from  the  register  of  the  land 
office. 

The  usual  duplicate  receipt  of  the  receiver  of  any  land 
office,  or,  if  that  be  lost  or  destroyed,  or  beyond  the  reach 
of  a  party,  the  certificate  of  such  receiver  that  the  books  of 
his  office  show  the  sale  of  a  tract  of  land  to  a  certain  indi- 
vidual, is  proof  of  title  equivalent  to  a  patent  against  all  but 
the  holder  of  an  actual  patent." 

25  Snyder,  5,891;  Wilson,  4,558;  27  Snyder,  5,903;  Wilson,  4,570; 
Kansas,  4,819  (1901),  identical;  Kansas,  1,831  (1901),  identical; 
Nebraska,  1,401.  McClurg  v.  Penny,  12  Okla.  303,  70 

26  Snyder,  5,905,  5,906;  Wilson,  Pac.  404;  Weeks  v.  White,  41  Kan. 
4,572,   4,573.  569,  21   Pac.   600;    O'Neill  v.  Dout- 

hitt,    39    Kan.    316,    18    Pac.    199; 
Dorsey  v.  McCartney,   12  Pac.   104. 


939  REAL  ACTIONS. — STATUTORY.        §§  1290-1292 

Sec.  1290.  Copies  of  papers  in  register  or  receiver's  oflace 
may  be  used  in  evidence. 
Copies  of  all  papers  and  documents  lawfully  deposited  in 
the  office  of  the  register  or  receiver  of  any  land  office  of  the 
United  States  within  this  State,  and  copies  of  any  official 
letter  or  communication  received  by  the  register  or  receiver, 
of  any  such  land  office,  from  any  department  of  the  Govern- 
ment of  the  United  States,  when  duly  certified  by  the  register 
or  receiver  having  the  custody  of  such  paper,  document,  letter 
or  other  official  communication,  shall  be  received  in  evidence 
in  the  same  manner  and  with  like  effect  as  the  originals.^^ 

Sec.  1291.  The  admission  of  deed  or  other  document  in  writ- 
ing— Admission  if  required,  when. 
Either  party  may  exhi])it  to  the  other,  or  to  his  attorney 
at  any  time  before  the  trial,  any  paper  or  document  material 
to  the  action,  and  request  an  admission,  in  writing,  of  its 
genuineness.  If  the  adverse  party  or  his  attorney,  fail  to 
give  the  admission  in  writing  within  four  days  after  the 
request,  and  if  the  party  exhibiting  the  paper  or  document 
be  afterward  put  to  any  costs  or  expense  to  prove  its  genuine- 
ness, and  the  same  be  finally  proved  or  admitted  on  the 
trial,  such  costs  and  expenses,  to  be  ascertained  at  the  trial, 
shall  be  paid  by  the  party  refusing  to  make  the  admission, 
unless  it  shall  appear  to  the  satisfaction  of  the  court  that 
there  was  good  reasons  for  the  refusal.'® 

Sec.  1292.     Production  of  deeds  and  other  papers— Inspection 
of  document  books. 

Either  party,  or  his  attorney,  may  demand  of  the  adverse 
party,  an  inspection  and  copy,  or  permission  to  take  a  copy 
of    a    book,    paper    or    document    in    his    possession    or   under 

28  Snyder,    5,904;    Wilson,    4,571;  spection  of  books  and  papers  is  left 

Kansas,     4.832     (1901),     identical;  to     the     discretion     of     the     court 

Stinson  V.   Green,  42   Kan.   520,  22  whether    or    not    to    exclude    such 

Pap    5S6.  books  and  papers  at  the  trial  if  in- 

29Snvder,  5,887;  Wilson,  4.554;  spection  is  not  permitted."  Cham- 
Nebraska,  1,378  (1907),  identical.  berlain  v.  Chamberlain,  93  N.  W. 
"The  granting  of  orders  for  the  in-  1021. 


§  1293  merwine's  trial  of  title  to  land.  940 

his  control,  containing  evidence  relating  to  the  merits  of  the 
action  or  defense  therein.  Such  demand  shall  be  in  writing, 
specifying  the  book,  paper  or  document  with  sufficient  par- 
ticularity to  enable  the  other  party  to  distinguish  it,  and  if 
compliance  of  the  demand,  within  four  days,  be  refused,  the 
court,  or  judge,  on  motion  and  notice  to  the  adverse  party 
may,  in  their  discretion,  order  the  adverse  party  to  give  to 
the  other,  within  a  specified  time,  an  inspection  and  copy, 
or  permission  to  take  a  copy  of  such  book,  paper  or  document ; 
and  on  failure  to  comply  ^^^th  such  order,  the  court  may 
exclude  the  paper  or  document  from  licing  givi-n  in  evidence, 
or  if  wanted  as  evidence  by  the  party  applying,  may  direct 
the  jury  to  presume  it  to  be  such  as  the  party  by  affidavit, 
alleges  it  to  be. 

This  section  is  not  to  be  construed  to  prevent  a  party  from 
compelling  another  to  produce  any  book,  paper  or  document 
w^hen  he  is  examined  as  a  witness.'"' 

Sec.  1293.  Copy  of  deed  or  other  instrument  in  writing  may 
be  demanded,  when. 
Either  party,  or  his  attorney,  if  required,  shall  deliver  to 
the  other  party  or  his  attorney,  a  copy  of  any  deed,  instru- 
ment or  other  writing  whereon  the  action  or  defense  is 
founded,  or  which  he  intends  to  offer  in  evidence  at  the 
trial.  If  the  plaintiff  or  defendant  shall  refuse  to  furnish 
the  copy  or  copies  required,  the  party  so  refusing  shall  not 

30  Snyder,   5,888;    Wilson,    4,555:  will,   under  the   statute,   order  that 

Kansas,     4,856      (1901),     identical.  said   defendant  give  to  said  counsel 

The     counsel     for     plaintiff,     upon  for  complainant,  within  a   specified 

proper   demand,   has   a   right  to  an  time,    an    inspection    and    copy    or 

inspection  and   copy,   or   permission  permission   to   take   a   copy  of   said 

to  take   a  copy,  of  the   county   rec-  records.     State  v.  Allen,  5  Kan.  213, 

ords,  within  the  custody  of  the  said  124.     Where  a  party  has  told   the 

defendant,  containing  evidence  relnt-  adverse   party   that   the   writing   of 

ing   to    the    merits    of    the    action,  which    an    insnection   is    asked,    has 

and    after    said    defendant    has,    for  been  destroyed,   the  notice   required 

more   than    four    days,    persistently  by   the    statute    is    dispensed    with. 

refused    such    inspection    and    copy,  Barmby  v.  Plummer,  45  N.  W.  277. 

the   court   upon   motion   and   notice  As    to    cases    where    secondary   evi- 

to  such  defendant,  and  sufficient  evi-  dence  of  a  document  may  be  admit- 

dence  of  such  demand  and  refusal,  ted,  see  Whitney  v.  State,  73  N.  W. 


941  REAL    ACTIONS. — STATUTORY.  §  1294 

be  permitted  to  give  in  evidence,  at  the  tri^.1,  the  original  of 
which  a  copy  has  been  refused.  This  section  shall  not  apply 
to  any  paper,  a  copy  of  Avhich   is  filed  with   any  pleading.^^ 

Sec.  1294.    Births — Deaths — Evidence  of  marriage — Copies  of 
marriage  register. 
When,  by  ordinance  or  custom  of  any  religious  society  or 
congregation  in  this  State,  a  record  is  required  to  be  kept  of 
marriages,  births,  baptisms,   deaths  or  interments,  such  reg- 
ister shall  be  admitted  as  evidences- 
Testimony  tending   to  prove   the  laws,   usages   and   customs 
of  the  Creek  Nation,  Avith  regard  to  the  marriage  relation  and 
the    legitimacy    of   the    children   of   such    marriage    and    their 
consequent  legal  status  as  heirs  during  the  period  in  question, 
are  held  to  be  competent,  and  it  would  be  error  at  the  trial 
to  exclude  such  testimony,  if  otherwise  competent.! 

Copies  of  the  register  referred  to  in  the  preceding  para- 
graph, certified  by  the  pastor  or  other  head  of  any  such 
society  or  congregation,  or  by  the  clerk  or  other  keeper  of 
such  register,  and  verified  by  his  affidavit  in  writing,  shall 
be  received  in  evidence.*  A  marriage  may  be  proved  by 
general  reputation  in  all  actions  where  it  is  necessary  to 
prove  title  to  real  estate.  It  is  to  be  observed  that  the 
language  is  "general  reputation."  It  cannot  be  proved 
by  any  other  reputation.  A  witness  introduced  to  prove  a 
marriage  by  reputation  may  be  asked  if  he  knows  the  general 
reputation  of  the  parties,  and  if  he  answers  in  the  affirmative, 
he  may  testify  as  to  the  general  reputation  in  the  community 
in  which  they  lived  as  to  their  being  married.'^ 

696;    Baldwin    v.    Burt,    61    K    W.  Kan.    160,    114;    Psyche    v.    Shinn, 

601:  Hawley  v.  Robinson,  16  N.  W.  94  N.  W.  135. 

438;     Westinghouse    v.    Tilden,    76  32  Snyder,    5,900;    Wilson,    4,567; 

N.  W.  416:  see,  for  right  to  require  Kansas,     4,828      (1901),     identical; 

witness  at  trial   on  duces  tecum  to  ]\reconce    v.    Mower,    37    Kan.    298, 

produce  writing,  ^March  v.  Davis,  6  15  Pnc.  155. 

Pac.    612:    Atchison    v.    Burke,    90  t  Oklahoma  Land  Co.  v.  Thomas, 

Pac.  950.  et  al.,   Supreme   Court,  not   yet  re- 

31  Snyder,    5.889:    Wilson.    4.556:  ported. 

Nebraska.    1.380    (1907),    identical:  •  Snyder.  5,901 ;  Wilson,  4.568. 

Hammerslough    v.    Hackett,    1    Pac.  33  Warvelle  on  Ejectment,  Sec.  382. 
41:    Kansas   v.    Christian    Berry,    3 


§  1295  merwine's  trial  of  title  to  land.  942 

Sec.  1295.     Certified  copies  of  the  enrollment  records  of  the 
commissioners    to   the   Five    Civilised    Tribes — 
Evidence  as  to  blood  and  age  of  the   allotee. 
In  order  for  the  security  of  the  laud   titles  of  all  of  the 
lands   allotted    in    this    State    to    the    Indians,    Congress   was 
careful  to  provide  a  means  for  the  determination  of  the  age 
and  of  the  blood  of  any  allotee  of  said   lauds.      It    declared 
"that   the  roll   of   citizenship   and   of   freedmeu    of   the   Five 
Civilized   Tribes,   approved   by  the  secretary   of  the   interior, 
shall   be   conclusive   evidence    as   to   the    f|uantu!n    of    Indian 
blood  of  any  enrolled  citizens  or  freedmeu  of  said  tribe,  and 
of  no    other  persons,    to   determine    questions    arising    under 
this  act,  and  the  enrollment  records  of  the  commissioner  to 
the  Five  Civilized   Tribes   shall   hereafter   be   conclusive   evi- 
dence as  to  the  age  of  said  citizen  or  freedman.^* 

The  following  construction  has  been  placed  by  the  Federal 
courts  on  this  statute : 

''The  object,  purpose  and  intent  of  Congress  by  this  por- 
tion of  the  act  was  not  by  its  ipse  dixit  to  make  tliat  which 
was  black,  white,  or  the  reverse,  nor  was  it  enacted  for  the 
purpose  of  putting  questions  of  fact  beyond  the  pale  of 
judicial  inquiry.  This,  of  course,  it  could  not  do  and  would 
not  attempt.  On  the  contrary,  however,  said  portion  of  the 
act,  and  the  public  rolls,  prepared  according  to  the  authority 
of  Congress  as  well,  were  all  part  and  parcel  of  a  general 
scheme  w^orked  out  and  employed  by  the  Government  in  the 
allotment  of  tribal  property  in  severalty  to  the  members  of 
the  tribes  and  in  an  endeavor  to  protect  such  allotees  in 
their  several  property  rights  by  such  means,  and  to  such 
extent  as  the  exigencies  of  the  case,  the  ignorance  and  en- 
vironment of  the  allotee  considered,  demanded  for  the  best 
interests  of  the  wards  of  the  Government.  In  carrying  out 
this  scheme  of  protection.  Congress,  as  it  had  the  undoubted 
right  to  do,  defined  the  word  'minor'  as  it  did  therein,  and 
referred    any    and    all    persons    intending    to    become    pur- 

34  Act  of  May  27,  1908;  Bledsoe's    Indian  Land  Lavs,  Sec.  605. 


943  REAL  ACTIONS. — STATUTORY.  §  1296 

chasers  of  any  portion  of  the  tribal  lands  from  an  allotee 
thereof,  not  to  the  uncertain  hazard  of  a  judicial  inquiry, 
based  on  the  evidence  of  ignorant  and  interested  witnesses, 
but  to  the  fixed  and  definite  public  rolls  to  ascertain  whether 
such  allotee  did  or  did  not  possess  the  qualified  age  or 
requisite  degree  of  Indian  blood  to  confer  upon  him  the 
power  of  disposition  under  the  law.  If  an  intending  pur- 
chaser of  an  allotee  of  tribal  property  holding  the  public 
rolls  in  one  hand  and  this  act  in  the  other,  by  a  comparison 
of  the  two,  found  such  allotee  possessed  the  power  of  dis- 
position under  the  act  and  the  rolls,  he  was  at  liberty  to 
purchase  and  he  was  protected  in  such  purchase.  If,  on  the 
other  hand,  the  law  and  the  public  rolls  considered  together, 
denied  the  right  of  the  allotee  to  convey,  a  purchaser  from 
such  allotee  was  not  protected,  and  this  regardless  of  the 
true  state  of  facts  as  they  might  be  made  to  appear  in  the 
case."  ^' 

Sec.  1296.  Affidavit  as  to  age  a  declaration  against  interest 
and  admissible  in  evidence — Party  competent 
to  testify  as  to  age. 

Where  an  affidavit  is  made  as  to  the  age  of  an  allotee  by  a 
party,  before  conveying  lands,  such  affidavit  is  competent 
evidence  as  an  admission,  and  may  be  introduced  on  trial 
for  the  purpose  of  fixing  the  age.  In  the  action  in  which 
this  doctrine  was  announced  the  allotee,  in  order  to  sell  his 
land,  made  an  affidavit  for  the  purchaser  that  he  was  of  age. 
Afterward,  at  the  trial  where  the  question  of  the  age  of  the 
allotee  was  in  issue,  the  court  permitted  it  to  be  introduced 
in  evidence,  and  this  ruling  was  affirmed.^® 

We  quote  from  the  opinion  in  this  case,  delivered  by  Mr. 
Justice  Dunn,  of  the  Supreme  Court : 

"The  evidence  discloses  that  the  defendant  is  a  freedman 
member  of  the  Creek  Tribe  of  Indians,  and  the  land  involved 

35  Bell    V.    Cook,    et    al.,    Circuit  36  Ross  v.  Heriott,  decided  by  Su- 

Court  of  the  United   States  for  the        preme    Court   of    Oklahoma,    March 
Eastern   District  of   Oklahoma,   sit-        12,   1912, 
tin?     at     Muskogee      (October     26, 
1911). 


§1297  merwine's  trial  o.    title  to  land.  944 

his  allotment,  forty  acres  of  which  was  designated  as  his 
homestead;  that  he  was  enrolled  by  the  Commission  in  the 
month  of  September,  1898,  as  of  the  age  of  eight  years;  that 
on  June  25,  1908,  he  executed  and  delivered  to  C.  I.  Earn- 
hart  a  warranty  deed  to  this  entire  tract  of  land;  that  on 
March  19,  1909,  Earnhart  executed  a  deed  to  Tackaberry ; 
that  on  the  8th  day  of  April,  1909,  the  defendant  and  his 
wife  acknowledged  and  delivered  a  deed  to  J.  V.  Tackaberry. 
The  question  of  the  age  of  the  allotee  and  original  grantor 
is  the  pivot  around  which  all  of  the  propositions  of  this 
case  revolve.  On  the  trial,  the  plaintiff,  for  the  purpose  of 
showing  that  the  defendant  was  of  age  at  the  time  of  the 
execution  and  delivery  of  the  deed  to  P'arnhart,  submitted 
in  evidence  the  testimony  of  Tackaberry,  who  stated  that 
the  defendant  told  him  that  his  father  had  informed  him 
that  he  was  born  :\rarch  1.  1887;  that  ho  stated  tliat  hr  was  of 
age,  and  that  he  looked  like  a  man  just  as  he  now  does; 
that  there  was  no  change  in  him ;  also  an  affidavit  made  by 
the  defendant  for  the  purpose  of  fixing  his  age  under  date 
of  February  29,  1908,  in  whieh  he  stated  that  he  was  born 
on  the  1st  day  of  IMarch,  1887.  This  testimony  was  sufficient, 
if  believed  by  the  jury,  to  support  its  conclusion  that  the 
defendant  was  of  age  at  the  time  shown  by  the  affidavit 
mentioned,  the  same  being  on  the  part  of  the  defendant,  an 
admission  against  his  interest  which  he  was  competent  to 
make.  1  Ene.  of  Ev.  735,  and  cases  cited  in  notes  15  and  16; 
State  V.  McLain,  49  Kan.,  750;  Burke  v.  Hindsman,  70  111. 
App.,  496." 

It  has  been  held  that  a  party  to  an  action  where  his  age 
is  a  question  at  issue,  may  testify  as  to  his  age.^'' 

Sec.  1297.    The  law  making  the  rolls  final  as  to  blood  and 
age  of  an  allotee  is  constitutional. 

This  act  of  Congress  providing  that  the  rolls  of  citizenship 
and  of  freedmen  of  the  Five  Civilized  Tribes,  approved  by 
the  secretary  of  the  interior,  shall  be  conclusive  evidence  as 

37  Stevens   v.    Elliott,    118    Pac.     (Okla.)     407. 


945  REAL   ACTIONS. — STATUTORY.  §  1297 

to  the  quantum  of  Indian  blood  of  an  enrolled  citizen  or 
freedman  of  said  tribes,  and  that  the  enrollment  records 
should  thereafter  be  conclusive  evidence  as  to  the  age  of 
said  citizen  or  freedman,  has  been  held  to  be  constitutional. 
For  a  long  time  ii:everal  of  the  district  courts  of  Eastern  Okla- 
homa had  been  holding  that  this  act  was  unconstitutional 
because  Congress  could  not  legislate  that  which  is  not  a  fact 
to  be  a  fact. 

The  court  in  the  opinion  declaring  the  law  to  be  constitu- 
tional, said : 

"In  consideration  of  a  law  all  doubts  are  resolved  in 
favor  of  its  constitutionality.  "When  it  is  attacked,  if  a  doubt 
exists,  it  must  be  resolved  in  its  favor.  Counsel  for  defend- 
ants contend  that  the  section  of  this  act  making  the  rolls 
conclusive  evidence  as  to  the  age  of  the  allotee  is  unconsti- 
tutional, unenforceable  and  void.  The  act  in  question  is  an 
act  of  Congress,  and,  as  we  have  seen,  has  been  interpreted 
and  held  valid  by  the  Federal  court  sitting  within  the  juris- 
diction wherein  these  people  and  their  lands  are;  the  reasons 
advanced  in  support  of  the  conclusion  reached  by  that  court 
appear  to  us  to  be  sound  and  correct,  and  we  adopt  them. 
It  would  hardly  be  possible  to  enlarge  on  the  language  used 
by  the  Supreme  Court  of  the  United  States,  and  later  fol- 
lowed and  used  by  this  court  in  recognizing  the  plenary 
power  possessed  by  Congress  in  dealing  with  these  Indian 
wards  and  their  property.  Among  the  numerous  cases  in 
which  it  is  noted  is  that  of  Lonewolf  v.  Hitchcock,  187  U.  S., 
553;  23  Sup.  Ct.,  216;  47  Law  Ed.,  299,  wherein  speaking  of 
this  subject,  Mr.  Justice  White  says: 

"  'The  power  of  the  general  government  of  these  remnants 
of  a  race  once  powerful,  now  weak  and  diminished  in  num- 
bers, is  necessary  to  their  protection,  as  well  as  to  the  safety 
of  those  among  whom  they  dwell.  It  must  exist  in  that 
government,  because  it  never  existed  anywhere  else,  because 
the  theater  of  its  existence  is  within  the  geographical  limits 
of  the  United  States,  because  it  has  never  been  denied,  and 
because  it  alone  can  enforce  its  laws  on  all  the  tribes.     That 


§  1297  merwine's  trial  of  title  to  land.  946 

Indians  who  had  been  fully  emancipated  from  the  control 
and  protection  of  the  United  States  are  subject,  at  least  so 
far  as  the  tribal  lands  were  concerned,  to  be  controlled  by- 
direct   legislation   of   Congress,   is   also    declared    in   Choctaw 

Nation  v.  United  States,  112  U.  S.,  ;  17  Sup.  Ct.,  76;  30 

Law  Ed.,  306;  and  Stephens  v.  Choctaw  Nations,  174  U.  S., 
445;  19  Sup.  Ct.,  723;  43  Law  Ed.  1041.'  " 

Quoting  the  foregoing  this  court  in  the  case  of  Gleason 
et  al.  V.  Wood,  26  Okla.,  502;  114  Pac,  703,  said: 

"Not  only  has  this  power  been  exercised  over  tribal  aiTairs, 
but  it  is  extended  to  the  property  of  the  iiu'inhers  anil  tlie 
disposition  thereof,  its  tenure,  title,  and  idl  rifjhts  growing 
out  of  it.  The  individual  interest  therein  which  has  been 
given  had  been  by  virtue  of  its  plenary  legislative  authority, 
and  the  interest  and  title  withheld  has  been  under  the  same 
power.  For,  as  was  said  by  Judge  Hook,  in  Ligou  v.  .John- 
son, 164  Fed.,  670;  90  C.  C.  A.,  486,  'The  disposition  of  the 
tribal  property  of  the  Indian  tribes  falls  within  the  legislative 
domain;  the  power  of  Congress  is  supreme,  and  its  action  is 
conclusive  upon  the  courts.'  " 

^Vnd  having  under  consideration  this  identical  act  of 
Congress,  this  court,  speaking  through  ]\Ir.  Justice  Hays,  in 
the  case  of  Jefferson  v.  Winkler,  26  Okl.,  653;  110  Pac,  755, 
said: 

"It  is  unnecessary  to  comment  upon  the  extent  or  limita- 
tion of  the  authority  over  the  lands  and  property  of  such 
Indians,  that  is,  by  the  enabling  act  reserved  to  the  United 
States  Government;  for,  whatever  be  the  extent  of  that 
authority  or  its  limitations,  we  think  it  cannot  be  questioned 
that  said  authority  reserved  is  sufficient  to  retain  in  the 
Government  of  the  United  States  jurisdiction  over  the  re- 
stricted lands  of  said  Indians  to  determine  and  provide  how 
and  in  w^iat  manner  such  restrictions  shall  be  removed;  and 
that  until  such  restrictions  are  removed,  the  lands  of  said 
Indian  minor  allotees  are  not  within  the  jurisdiction  of  the 
probate  courts  of  the  State  with  poAver  in  said  courts  to 
order  the  sale  thereof  for  any  purpose.     Since  the  power  to 


947 


REAL  ACTIONS. — STATUTORY.  §  1297 


remove  such  restrictions  are  wholly  within  Congress,  it  may 
say  upon  what  terms  and  conditions  they  will  be  removed, 
and  under  the  supervision  of  what  court  or  officer  the  sale 
of  the  same  shall  be  made. 

"Among   the   terms   and   conditions  fixed  by  this   act   are 
found    the    provisions   that    the   jurisdiction    of   the    probate 
courts  of  the   State  of  Oklahoma  over  the  lands  of  minors 
and  incompetents  is  made  subject  to  the  foregoing  provisions, 
to-wit:  the  status  of  the  lands,  and  thereunder  was  defined 
the    term    'minor'    or    'minors,'    to    the    end    that    the    State 
might  not  pass  an  act  making  either  a  less  or  greater  number 
of  years  conclude  the  minority  of  the  parties  with  whom  it 
was  then  dealing,  or  otherwise  effect  a  change  in  their  rights 
of  alienation.     It  was  also  provided  that  the  rolls,  made  by 
the   Dawes   Commission,    approved   by   the   secretary   of   the 
interior,   should  be   conclusive  as  to  the  quantity  of  Indian 
blood   of   any   enrolled   citizen   or   freedmen,   and   that   they 
should  hereafter  be  conclusive  evidence  as  to  the  age  of  said 
parties  in  determining  matters  arising  under  the  act.     The 
power  to   thus   legislate   for  these   citizens   of   the   State   of 
Oklahoma,    was    reserved    to    Congress    by    Section    1    of    the 
Enabling    Act,    and    recognized    and    sanctioned    in    Section    3 
of   Article   1    of   the   Constitution,    and   the    State    courts   are 
bound  in  good  faith  to   enforce  these   congressional  regula- 
tions in  reference  to  the  lands  of  members  of  these  tribes. 
The   record   introduced   was   one   made   under   Congressional 
authoritv    bv    a    commission    organized    for    the    purpose    of 
perfecting  these  rolls.     A  census  was  authorized,  if  not  di- 
rectly enjoin-d,  and  the  information,  thus  gathered  at  great 
expense,  was  in  possession  of  Congress.     All  agree  upon  the 
purpose  and  end  to  be  secured  by  restricting  these  allotees 
in  their  right  to   alienate  their  lands.     Counsel  charge   and 
admit  on  both  sides  that  on  a  trial  wherein  the  question  of 
the  ages  of  these  allotees  arises,  virtually  no  dependence  what- 
soever is  to  be  placed  in  the  accuracy  of  the  testimony  or 
evidence    adduced.      It    is    asserted    and    admitted    to    be    a 
matter   of    general   knowledge,    that   these   people    generally 


§  1297  merwine's  trial  op  title  to  land.  948 

kept  but  few,  if  any,  records  showing  their  family  history 
or  ages,  and  that  as  a  consequence,  any  proof  adduced  at 
any  time  in  any  controversy  is  subject  to  all  the  fluctuations 
incident  to  ignorance  or  self-interest.  This  bt'ing  true,  Con- 
gress cannot  be  presumed  to  have  been  ignorant  of  these 
facts  and  these  ages,  thus  fixed  by  an  impartial  judicial 
commission,  without  interest  to  do  aught  else  than  with  such 
light  as  it  could  obtain,  fix  them  correctly,  wei-e  in  the 
main,  more  likely  to  be  accurate  tiiau  ages  established  at  a 
time  and  under  conditions  where  self-support  or  ignorance 
would  produce  either  deception  or  error.  The  stability  of 
land  titles  is  of  paramount  importance  everywhere,  and  this 
wise  and  salutary  statute  of  Congress  will  have  much  to 
do  with  permanently  determining  the  same  to  large  quantities 
of  these  tribal  lands.  Congress  has  not  sought  herein  to 
make  that  which  was  false  true  or  to  make  that  whieh  was 
true  false;  the  ages  fixed  were  not  for  the  purpose  of  estab- 
lishing any  rights  whatsoever  under  the  laws  of  the  State; 
they  were  not  conclusive  of  the  age  of  consent,  or  marriage, 
or  of  the  right  to  exercise  the  elective  franchise ;  they  refer 
solely  to  the  determination  of  questions  arising  under  the 
act.  The  fact  that  some  of  these  ages  are  manifestly  inaccu- 
rately stated  in  the  records  in  no  wise  changes  or  alters  the 
rule  laid  down.  The  power  of  Congress  to  say  upon  what 
terms  restrictions  should  be  relaxed  or  removed  was  abso- 
lute and  the  act  in  this  respect  is,  in  our  judgment,  constitu- 
tional and  valid. ' '  ^* 


38Yarbrough  v.  Spalding,  decided  held  at  the  beginning  of  the  action 

by  the  Supreme  Court  of  Oklahoma,  by    tlie    defendants,    claiming    title 

March   12,   1912.     The  facts  giving  under  plaintiff's  deed.     On  tlie  trial 

rise  to   this  opinion,  briefly   stated,  there    was   offered    by    the    plaintiff 

are  these:     Plaintiff  in  error,  Jennie  and   received    in   evidence   over    the 

Yarbrough      (nee     Hammonds),     a  defendants'     objection,     a     certified 

Creek  citizen   of  the  half  blood,   as  copy  of  plaintiff's  enrollment  card, 

plaintiff  in   the   lower  court,  began  as    follows:       "Department    of    the 

an  action  to  recover  certain  allotted  Interior.     Commissioner  to  the  Five 

lands  which  she  had  alienated  dur-  Civilized  Tribes,  Creek  Roll.  Citizens 

ing  the  year   1908,  and  which  were  by    Blood.      Number    4431;     name, 


949  REAL  ACTIONS. — STATUTORY.  §  1298 

Since  the  text  in  this  section  was  written,  the  Supreme 
Court,  on  a  rehearing  or  Ross  v.  Ilenott,  supra,  decided  that 
"Under  section  three  of  the  act  of  May  27,  1908,  the  enroll- 
ment records  of  the  Five  Civilized  Tribes,  are  from  and  after 
the  date  of  said  act  conclusive  evidence  of  the  age  of  the 
citizen  or  freedman  referred  to  therein  for  the  purposes  of 
the  said  act,  and  a  deed  from  the  allotee  executed  after  the 
approval  thereof  and  at  a  time  when  the  said  records  show 
him  to  be  a  minor,  is  void." 

Sec.  1298.  Admissibility  of  rolls  to  show  the  tribal  blood 
of  an  allotee. 
In  discussing  this  (luestion  our  Supreme  Court  has  said: 
"Dora  Hanby  and  her  husband  both  testified  that  she  and 
her  deceased  son  were  members  of  the  Creek  Tribe  of  Indians 
by  blood.  They  testified  that  she  was  one  thirty-second 
Creek,  and  that  the  deceased  was  one  sixty-fourth  Creek. 
The  enrollment  card  showed  them  to  have  Creek  blood.  If 
any  of  the  testimony  taken  before  the  commission  to  the 
Five  Civilized  Tribes  could  be  considered,  then  the  testimony 
of  Mary  E.  Bowen,  Dora  Ilanby's  grandmother,  shows  she 
was  of  Creek  blood.  The  defendant  introduced  a  copy  of 
the  testimony  of  some  witnesses,  taken  before  the  commis- 
sion to  the  Five  Civilized  Tribes,  for  the  purpose  of  showing 
that  Mary  E.  Bowen,  the  grandmother  of  Dora  Ilanby,  was 
not  a  Creek  by  blood.     A  great  deal  of  the  testimony  offered 

Hammonds,  Jennie;  age,  eight;  sex,  Five  Civilized  Tribes."     Defendants 

female;  blood,  half;   Card  No.  13!)3.  then    offered   over    plaintiff's    objec- 

This    is    to   certify   that    I    am    the  tion,  evidence,  which,   if  competent, 

officer  having  the  custody  of  the  ap-  established    that    the    plaintiff   was 

proval    roll    of    Creek    citizens    by  eighteen  years   of   age   on   the   20th 

blood,  and  that  the  above  and  fore-  day  of   December,   1907.     The  trial 

going    is    a    true    and    correct    copy  court     found     for     the     defendants, 

of  that  portion  of  said  mil  appear-  which  necessarily  included  a  finding 

ing   at    No.    44.31.      Enrolled    as   of  that    this    was    the    correct    age   of 

January  18,  1000.     ^luskogee,  Okla-  plaintiff,  and  rendered  a  decree  hold- 

homa.     C.  H.  Drew,  Clerk.     Musko-  ing  valid  the  deeds  to  the  allotted 

gee,   Oklahoma,  November  22,  1910.  lands  in  qaestion. 
J.  G.  Wright,  Commissioner  to  the 


§§  1298a,  1298b      merwine's  trial  of  title  to  land.  950 

for  tliis  purpose  was  inadmissible  at  tbo  tiiiu'  it  was  givt-n 
before  the  commission,  even  under  the  liberal  rulf  with 
reference  to  pedigree  and  family  relationship.  Hut  certainly 
none  of  the  testimony  taken  before  the  commission  in  the 
application  for  enrollment  of  Mary  E.  Bowen  ct  al.  was 
admissible  in  this  case.  No  attempt  whatever  was  made 
to  account  for  the  absence  from  this  trial  of  the  witnesses 
who  had  testified  before  the  commission.  The  plaintiff  ob- 
jects to  its  introduction,  and  when  the  court  admitted  it, 
over  his  objection,  excepted.  Whether  the  court  proceeded 
upon  the  theory  that  many  courts  do,  where  there  is  no  jury. 
that  it  saves  time  to  admit  everything,  and  then  reject  the 
incompetent  testimony  when  con.sidering  the  case,  or  whether 
he  considered  the  evidence,  does  not  appear  from  the  record. 
But,  considering  all  the  evidence,  incompetent  as  well  as 
competent,  it  cannot  be  said  that  there  is  not  sufficient  evi- 
dence to  sustain  the  finding  of  the  court.  "^" 

Sec.  1298a.    Allotment  certificate  sufficient  to  make  out  case, 
when. 
In  an  action  of  ejectment  by  an  allotee,  the  proof  of  the 
certificate  of  allotment,  in  the  absence  of  any  other  proof,  is 
sufficient  to  make  a  case  for  the  plaintiff.* 

Sec.  1298b.  The  enrollment  records  have  always  been  con- 
clusive evidence  as  to  the  age  and  blood  of  an 
allotee. 

The  writer  has  always  been  of  the  opinion  that  the  enroll- 
ment records  were  conclusive  as  to  age  and  blood  of  an  allotee, 
even  prior  to  the  enactment  of  section  three  of  the  act  of  May 
twenty-seven,  nineteen  hundred  and  eight.  Both  the  cases 
above  herein,  Yarbrough  v.  Spalding  and  Ross  v.  Heriott, 
were  argued  to  the   Supreme   Court   at  the   same  time,   and 

••'sSkelton   V.   Dill,    29   Okla,   813,  ♦  Devin  v.  Adkinson,  —  Okla.  — . 

119  Pac.  2(57;  Sec.  1298a.  Allot- 
ment certificate  sufficient  to  make 
out    case,    when.      ^  » 


951  REAL  ACTIONS. — STATUTORY.  §  1298b 

the  writer  then  in  oral  agreement  and  by  written  brief  urged 
this  proposition  on  the  court.  This  proposition  was  involved 
in  both  cases,  but  the  court  decided  both  cases  without 
passing  on  the  proposition  here  stated.  The  argument  pre- 
sented in  each  of  these  cases  we  here  present.  We  are  led  to 
do  this  because  the  Supreme  Court,  at  this  writing,  has  handed 
down  an  opinion  which  decided  this  question.  It  is  the  case 
of  Campbell  v.  Vance,  an  action  on  appeal  from  Craig  County. 
The  writer  has  the  written  opinion,  and  here  quotes  from  the 
syllabus : 

"The  enrollment  records  of  the  commissioner  to  the  Five 
Civilized  Tribes,  as  provided  for  by  act  of  Congress,*  are 
conclusive  evidence  as  to  the  age  of  citizens  and  freedmen 
allotees  of  said  tribe. 

"In  a  controversy  as  to  which  of  two  instruments  of  con- 
veyance executed  by  an  allotee  is  valid,  and  it  appears  from 
the  enrollment  records  that  such  allotee  was  enrolled  as 
of  fifteen  years  of  age  September  first,  nineteen  hundred  and 
two,  and  would  therefore  become  twenty-one  years  of  age 
September  one,  nineteen  hundred  and  eight,  and  one  of  said 
instruments  was  executed  prior  and  the  other  subsequent  to 
such  date,  the  latter  instrument  is  held  to  convey  the  valid 
title." 

The  court,  after  announcing  this  opinion  has  withheld  the 
same  as  it  did  in  the  case  of  Parkinson  v.  Skelton,  supra. 
Both  cases  were  decided  correctly  and  the  court  will  eventu- 
ally, on  more  mature  deliberation,  so  hold.  The  decision  in 
Campbell  v.  Vance,  supra,  is  an  announcement  (though  not  in 
the  same  language),  of  the  conclusions  of  the  writer  in 
written  argument  by  brief  in  that  court,  and  this  is  the 
excuse  for  here  giving  the  argument  in  full: 

"The  finding  of  the  Commission  of  the  Five  Civilized 
Tribes,  having  established  the   age   of  the  allotee,  the  same 

•Act  of  June   10,  1896    {29  Stat.  L.  321). 


§  1298b  merwine's  trial  op  title  to  land.  952 

could  not  be  changed  or  modified  except  by  judgment  of  a 
court  of  competent  jurisdiction,  and  the  said  fiiidint^  never 
having  been  questioned  or  changed  or  modified  pn-vious  to  tlie 
Act  of  ]\Iay  twenty-seven,  nineteen  hundred  and  eight,  wliieh 
made  the  findings  of  said  commission  conclusive  as  to  age; 
therefore,  said  finding  of  the  said  commission  stands  as  judieial 
finding  and  stands  as  conelusive  since  the  date  of  the  enroll- 
ment of  said  allotee  and  finding  of  said  commission. 

''But  there  is  another  reason  why  the  census  or  roll  card 
is  conclusive  as  to  the  age  of  the  allotee  at  all  tinu's  after 
enrollment.  The  finding  and  conclusion  of  tiie  commission 
was  a  judgment,  and  until  set  aside  or  corrected  by  tiie 
method  provided  by  law  for  that  purpose,  it  became  res 
adjudicata. 

"By  the  Act  of  June  twenty-seven,  nineteen  hundred  and 
eight,  we  find  that  the  Commission,  in  making  the  census 
rolls,  was  given  authority  to  administer  oaths,  examine  wit- 
nesses, to  require  the  production  of  documents  and  papers, 
and  anyone  testifying  falsely  before  it,  was  guilty  of  per- 
jury. The  same  act  provided  that  the  rolls,  when  so  made 
up  and  approved  by  the  secretary  of  the  interior,  should  be 
final.  The  enrollment  records  were  thus  made  by  a  commis- 
sion, sitting  as  a  court,  taking  the  testimony,  and  the  rolls 
so  found,  determined  and  made  by  the  commission,  were 
afterwards  passed  upon  and  confirmed  by  the  United  States 
Government,  under  the  Department  of  the  Interior.  It  will 
thus  be  seen  that  Congress  conferred  upon  this  commission, 
thus  acting  as  a  court,  all  of  the  powers  and  attributes 
incident  to  a  court  of  record;  it  had  the  power  to  bring 
witnesses  before  it,  to  administer  oaths,  to  bring  papers  and 
other  evidence  as  to  sex,  age,  blood,  tribal  relations,  before 
it,  and  its  judgment  should  be  final;  it  gave  th«  right  of 
appeal  to  anyone  aggrieved  by  its  judgment  and  its  judg- 
ment and  proceeding  was  finally  recorded  and  open  to  the 
inspection  of  the  public. 

"It  will  be  thus  seen  from  this  Federal  law,  given  below, 
that  the  commission,  acting  as  a  court  of  record,  was  author- 


953  REAL  ACTIONS. — STATUTORY,  §  1298b 

ized  to  make  an  enrollment  of  the  citizens  and  freedmen  of 
the  Five  Civilized  Tribes,  and  in  addition  thereto,  it  was 
authorized  to  make  a  census  of  the  tribe,  or  to  adopt  any 
other  means  deemed  necessary  to  make  such  rolls.  In  making 
the  census,  the  commission  was  obliged,  under  the  law,  to 
take  evidence  as  to  the  age  and  quantum  of  blood  of  the 
Indians  and  freedmen;  for  the  term  'census'  is  defined  to  be 
'an  official  enumeration  of  the  inhabitants  of  a  State  or 
country,  with  details  of  sex  and  age,  family,'  etc.  (6 
Cyc,  725.) 

"In  addition  to  the  several  attributes  of  a  court,  the  law 
gave  to  the  finding  and  conclusion  of  the  commission  the 
finality  of  a  judgment,  carrying  with  it  the  same  conclusive 
estoppel  as  belongs  to  a  judgment  in  a  court  of  record,  for 
it  says:  'The  judgment  of  a  court  shall  be  final.' 

"The  enrollment  record  thus  made  by  the  commission, 
sitting  as  a  court,  has  every  attribute  of  a  judgment,  and 
this  law  in  controversy,  calls  it  such.  The  logical  conclusion 
upon  this  subject,  therefore,  is  that  the  judicial  determination 
of  the  commissioner  to  the  Five  Civilized  Tribes  under  this 
law  of  Congress,  fixing  the  quantum  of  Indian  blood  and  the 
age  of  an  allotee,  as  to  the  lands  allotted  him  by  the  Gov- 
ernment, carries  with  it  the  same  conclusive  estoppel  pos- 
sessed by  every  judgment  of  a  court  of  record,  and  so  long 
as  not  repealed  or  set  aside  by  a  court  having  power  and 
jurisdiction  to  do  so,  is  notice  to  everyone  who  may  after- 
wards purchase  the  lands  allotted  to  such  Indian  or  freedman. 
In  the  cause  at  bar  there  was  therefore  a  judicial  determina- 
tion of  the  question  of  the  age  of  the  plaintiff,  in  the  enroll- 
ment record  of  the  Commissioner  to  the  Five  Civilized  Tribes, 
that  was  just  as  final  and  carried  the  same  conclusiveness  as 
any  court  of  record  in  the  United  States.  Now,  can  it  be 
said,  after  the  quantum  of  Indian  blood  and  the  age  of  an 
allotee  has  been  so  fixed  and  determined  by  this  judicial 
authority,  that  a  purchaser  of  the  land  allotted  to  an  Indian 
or  freedman  would  not  be  bound  by  the  roll? 


§  1298b  merwine's  trial  of  title  to  land.  954 

"Aside  from  these  considerations,  the  act  itself,  says: 
'And  hereafter  the  enrollment  records  shall  be  conclusive 
evidence  as  to  the  age  of  said  citizen  and  freedman.' 

"We  here  quote  from  an  act  of  Congress,  supporting  tiie 
statements  above  given  as  to  the  powers  and  duties  of  the 
Commissioner  to  the  Five  Civilized  Tribes,  in  making  up  tlie 
enrollment  records : 

"  'In  the  performance  of  sucli  duties,  said  cotnmission  sliall 
have  power  and  authority  to  administer  oatlis,  to  issue  proc- 
ess for,  and  to  compel  the  attendance  of  witnesses,  and  to 
send  for  persons  and  papers,  and  all  depositions  and  atli- 
davits  and  other  evidence  in  any  form  wluitsoever,  iiereto- 
fore  taken,  Avhere  tlie  witnesses  giving  such  testimony  are 
dead,  or  now  reside  beyond  the  limits  of  said  territory,  and 
to  use  every  fair  and  reasonable  means  within  their  reach 
for  the  purpose  of  determining  tlie  rights  of  persons  chiiming 
such  citizenship,  or  to  protect  any  of  said  nation  from  fraud 
or  wrong,  and  the  rolls  so  prepared  by  them  shall  hereafter 
be  held  to  be  the  true  and  correct  rolls  of  the  jx'rsons  entitled 
to  the  rights  of  citizenship  in  said  several  tribes:  Provided, 
that  if  the  tribe  or  any  person  be  aggrieved  with  the  decision 
of  the  tribal  authority,  or  the  commission  provided  for  in 
this  act,  it,  or  he,  may  appeal  from  such  decision  to  the 
United  States  district  court:  Provided,  further,  that  the 
appeal  shall  be  taken  within  sixty  days,  and  the  judgment  of 
the  court  shall  be  final. 

"  'That  the  said  commission,  after  the  expiration  of  six 
months,  shall  cause  a  complete  roll  of  the  citizenship  of  each 
of  said  nations  to  be  made  up  from  their  records,  and  add 
thereto  the  names  of  citizens  whose  rights  may  be  conferred 
under  this  act,  and  said  rolls  shall  be,  and  are  hereby,  made 
rolls  of  citizenship  of  said  nation  or  tribe,  subject,  however, 
to  the  determination  of  the  United  States  district  courts,  as 
provided  herein. 

'"The  commission  is  hereby  required  to  file  a  list  of  mem- 
bers as  they  finally  approve  them  with  the  commissioner  of 


955  REAL  ACTIONS. — STATUTORY.  §  1298b 

Indian  affairs,  to  remain  there  for  use  as  the  final  judgment 
of  the  duly  constituted  authorities.  And  said  commission 
shall  also  make  a  roll  of  persons  entitled  to  citizenship  in 
said  tribe,  and  shall  include  their  names  in  the  list  of  mem- 
bers  to   be   filed    with   the   commissioner   of   Indian   affairs.*" 

"  'Said  commission  shall  make  such  rolls  descriptive  of  the 
persons  therein,  so  that  they  may  be  identified,  and  it  is 
authorized  to  take  a  census  of  said  tribe,  or  to  adopt  any 
other  means  necessary  to  make  such  roll.    *   *   *  41 

"  'The  members  of  said  commission  shall,  in  performing 
all  duties  required  of  them  by  law,  have  authority  to  admin- 
ister oaths,  examine  witnesses,  send  for  persons  and  papers; 
and  any  person  who  shall  wilfully  and  knowingly  make  any 
false  affidavit  or  oath  to  any  material  fact  or  matter  before 
any  officer  authorized  to  administer  oaths,  to  any  affidavit 
or  other  paper  to  be  filed,  or  oath  taken  before  said  com- 
inissi(m,  shall  be  deemed  guilty  of  perjury,  and,  on  convic- 
tion thereof,  shall  be  punished  for  such  offense.'*^ 

"The  judgment  of  the  commission  is  a  matter  of  public 
record,  and  everyone  has  notice  of  it  and  is  bound  by  its 
terms,  just  as  everyone  is  bound  with  the  notice  of  a  recorded 
mortgage  or  judgment  lien,  on  real  estate,  for  which  he 
takes  a  deed. 

"The  tribunal  thus  created  by  act  of  Congress  had  the 
power  to  pass  these  two  questions  into  res  adjudicata.  In 
support  of  this  proposition  we  cite  the  following: 

"  'It  is  a  universal  principle  that  where  power  or  jurisdic- 
tion over  a  subject  is  delegated  to  any  public  officer  or 
tribunal,  whether  executive,  legislative,  judicial  or  special, 
and  its  exercise  is  confided  to  his  or  their  discretion,  the 
decisions  made  or  acts  done  are  binding  as  to  the  subject- 
matter,  and  cannot  be  questioned  collaterally;  provided  they 
are  within  the  scope  of  the  authority  and  power  conferred. 

*oibi(l;  Act  of  June  10,  1896   (29  i-^IUd;  Sec.  21,  Act  of  June  28, 

Stat.  L.  321).  1898   (30  Stat.  L.  495). 

*i  Ihid;  Act  of  June  28,   1898. 


§  1298b  merwine's  trial  of  title  to  land. 


956 


If  not  void  for  want  of  authority,  they  are  final  and  conclu- 
sive except  on  appeal  or  other  mode  of  revision,  if  any  such 
is  provided  by  lavi^,  or  proceedings  to  annul  for  fraud.'" 

"But  it  is  urged  in  the  court  below  that  the  commission 
is  not  authorized  to  fix  and  determine  the  quantum  of  blood 
and  the  age  of  the  allotee,  and  therefore  its  determination 
and  finding  on  either  question  would  not  import  absolute 
verity. 

"Congress  by  this  law  making  the  rolls  final  as  to  quantum 
of  blood  and  age,  explicitly  recognized  tlie  commission  had 
power  and  did  fix  both  the  question  of  blood  and  age. 

"Again,  whoever  heard  of  a  census  that  did  not  fix  the 
question  of  age? 

"  'A  census  is  the  official  registration  of  the  number  of  the 
people;  an  official  enumeration  of  the  inhabitants  of  a  State 
or  country  with  details  of  sex  and  age.'** 

"The  term  'census'  means  'an  official  enumeration  of  the 
inhabitants  of  a  State  or  country,  with  details  of  sex  and 
age,  family,  etc.'*' 

"As  will  be  seen  by  looking  at  the  provisions  of  the  act 
above  herein  set  forth,  creating  this  tribunal,  it  was  given 
power  to  make  a  census,  and  as  the  term  'census'  includes 
age,  the  deduction  is  that  it  had  power  to  fix  the  age  of  an 
allotee." 

Everyone  agrees  that  the  records  are  conclusive  as  to  the 
blood  of  an  allotee.  They  agree  to  this  proposition  because 
of  the  necessity  of  some  absolute  conclusive  proof  on  the 
subject.  The  vast  flood  of  cases  now  in  the  Supreme  Court, 
caused  by  the  uncertainty  as  to  proof  of  the  age  of  an  allotee, 
is  the  strongest  argument  that  could  be  made  for  the  proposi- 
tion for  which  w^e  here  urge  and  contend.  A  wise  public 
policy  demands  it  for  the  security  of  land  titles  in  almost  the 
half  of  our  State. 

43  2  Freeman  on  Judgments,  Sec.  44  2  Words  and  Phrases  Judiciilly 

531;  24  Am.  and  Eng.  Ency.  721  Defined,  1026;  City  v.  Cast,  48  N.  E. 

(2d   Ed.);    2   Black  on  Judgments,  1025,    149   Ind.  255. 

Sec.  516,  23  Cyc.  1219.  ^^Ihid;  e'Cyc.   725,  cited  above. 


AA    000  742  677 


